Framework for change to address systemic racism in policing

July 29, 2021

Introduction

Systemic racial discrimination, along with anti-Black and anti-Indigenous racism, lie at the core of many of our institutions, and are perhaps most visible in our police and criminal justice systems. Years of reports, studies and case law have made clear that the time is over for debating whether this bias exists in policing.

It is time for the Ontario government to champion transformative progress and take action that results in concrete changes to the law enforcement institutions and systems that are accountable for structures that perpetuate racial disparities. To dismantle systemic racism, we must restructure the systems that allow it to persist, and we need people in government with the vision, commitment to equity and tenacity to take on the difficult work of changing the system.

The OHRC calls on Ontario to establish a legislative and regulatory framework to directly address systemic racial discrimination in policing across the province. We have laid out a framework for systemic change that includes essential steps for eliminating discriminatory practices from policing across the province. Our goal is to make sure we accommodate all perspectives on these challenging issues, and implement reforms that will reduce the disparities identified by prior reports, and satisfy the objectives of the Ontario’s anti-racism strategic plan. The 10 proposed steps are mechanisms that will promote community safety and well-being across the province.

 

Background

The OHRC has studied, investigated and litigated racial profiling and policing issues for over 30 years. For example, in 2003, the OHRC released Paying the Price: The human cost of racial profiling, which featured first-hand accounts of racial profiling and recommendations on how best to prevent it. The OHRC published Under suspicion: Research and consultation report on racial profiling in Ontario in 2017, and in 2019 launched the Policy on eliminating racial profiling in law enforcement (Policy on racial profiling) to provide guidance to law enforcement organizations and the Government of Ontario on preventing, identifying and responding to racial profiling, racial discrimination, harassment and other violations of the Human Rights Code (Code).

In 2013, the Ottawa Police Service began the Traffic Stop Race Data Collection project, (TSRDCP), the largest data collection project undertaken by a Canadian police service. This project stemmed from a settlement agreement between the OHRC, the Ottawa Police Services Board and the Ottawa Police Service. Data from 2017 and 2018 showed that Middle Eastern drivers were 3.1 times more likely to be stopped than their representation in the population would suggest, and Black persons were 2.3 times over-represented.[1] In response to the persistent racial disparities identified in the study, the TSRDCP research team stated: “The continued adverse impact of traffic stop enforcement on certain racial communities strongly points to the importance of the Ottawa Police Service to explore alternative practices that can advance community safety.”[2]

In November 2017, the OHRC launched a public inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (TPS) to help build trust between the police and Black communities. The goal of the inquiry was to pinpoint problem areas and make recommendations to eliminate them.

To date, the OHRC has produced two interim inquiry reports: A Collective Impact (2018) and A Disparate Impact (2020). A Collective Impact conclusively showed that Black people were far more likely to be fatally shot by Toronto police than White people or people from other racialized groups.[3] A Disparate Impact showed that Black people, particularly Black males, were even more likely to be proactively arrested, charged[4] and subjected to use of force in a wide range of police interactions. These reports used a variety of methods – extensive quantitative data analysis, online surveys, focus groups, consultations and case law studies – to reveal the scale and scope of racial profiling as a serious systemic issue, and to confirm the experiences of everyday racism reported by Black communities.

In fact, recently in R v Le, 2019 SCC 34 (CanLII), the Supreme Court of Canada cited the OHRC’s research in A Collective Impact, Paying the Price and Under Suspicion as authoritative when considering the disproportionate policing of racialized communities.

In October 2020, the OHRC signed a Memorandum of Understanding (MOU) with Peel Regional Police (PRP) and the Regional Municipality of Peel Police Services Board that commits PRP to develop and implement legally binding remedies.

In April 2021, Missing and Missed, Report of the Independent Civilian Review into Missing Persons Investigations, spoke positively about the OHRC experience with recognizing and addressing systemic discrimination in policing. The report states: “The Ontario Human Rights Commission, of course, is expert in recognizing and addressing issues of systemic and overt discrimination and continues to use that expertise in addressing policing issues in Toronto and provincewide.”[5]

In May 2021, the Ontario Court of Appeal cited the OHRC’s MOU with PRP in R. v Sitladeen, when discussing the Crown’s “responsible” decision to accept the existence of racial profiling. The Court also relied on the OHRC’s definition of unconscious bias from its Policy on racial profiling.[6] Citing A Disparate Impact, the Ontario Superior Court of Justice stated: “there is no issue that the Black community has suffered a history of inequality as a result of both overt and systemic racism,” and “racism has infected the relationship between the police and the Black community.”[7]

It is clear from these studies, reports and the case law, as well as from the research and analysis in Broken Trust,[8] that the time is over for debate about whether systemic racism, anti-Indigenous and anti-Black racial bias exist in policing. Geopolitical events support a growing belief by Ontarians that this is not an issue of an individual officer or a particular police service.[9] This is a societal issue, and its gravity has come into sharp focus due to myriad tragedies across the province. It is time for Ontario to champion transformative progress and take action that results in concrete changes to the law enforcement institutions and systems that are accountable for the racial disparities found in these reports and referenced in the jurisprudence.

While the OHRC’s current inquiry focuses on the TPS, it would be naïve to think that the racial disparities identified are limited to Toronto. This would be inconsistent with the discriminatory experiences reported by Indigenous, Black and other racialized communities in all corners of Ontario. Given that the Province fulfils an essential role in establishing the legislative and regulatory framework police services operate in, the OHRC calls on Ontario to establish a legislative and regulatory framework to directly address systemic racism in policing.

 

Ten steps to address systemic racism

In the OHRC’s view, Ontario must take the following steps to address systemic racial discrimination in policing across the province.

1. Amend the Police Services Act and/or the Community Safety and Policing Act, 2019, and make changes to the Crown Prosecution Manual to implement a Crown pre-charge screening process to address over-charging and racial profiling

Crown pre-charge screening has the potential to reduce the impact of over-charging on Black and other racialized persons.

A Disparate Impact provides data that confirms that a large percentage of charges laid by TPS were stayed or withdrawn. Expert analysis of data from the OHRCs inquiry confirms that Black persons were disproportionately affected by the TPS practice of over-charging. For example, Black persons represented only 8.8% of the general population, but 28.8% of arrests involving a single charge, 30.5% of arrests involving two to five charges, 33.8% of arrests involving six to nine charges, and 38.9% of arrests involving 10 or more charges. Notably, the data indicates that charges were often withdrawn or dismissed.

The OHRC’s Policy on racial profiling recommends that police services “work with government to implement a Crown pre-charge screening process to address overcharging and racial profiling.”[10] While the Province has explored limited charge screening projects,[11] there is no indication that projects of this nature will be expanded across Ontario or made permanent.[12]

Crown pre-charge screening programs have been successfully deployed in British Columbia, Quebec and New Brunswick. New Brunswick uses a pre-charge screening or charge approval process that requires the Crown Prosecutor to review and approve charges before the police can lay them. This process also applies to provincial offences. Police officers investigate alleged crimes and then forward reports (including recommended charges) to Crown counsel, who decide whether to lay charges or institute alternative measures.

Comparing the rate of withdrawn charges in provinces that use pre-charge screening with rates in Ontario highlights the potential benefits of reforming the current system.

An OHRC analysis of adult criminal court data shows that provinces that use pre-charge screening have much lower rates of stayed or withdrawn charges than Ontario.

Specifically, 29% of charges were stayed or withdrawn in Quebec in 2018–19, while the figures were 37% in New Brunswick and 54% in B.C., equalling an average stayed/withdrawn rate of 40% among the three pre-charge screening provinces. In Ontario, by contrast, 68% of charges were stayed or withdrawn in 2018–19, which indicates broad patterns of over-charging that result in courts being flooded with low-quality cases that are very unlikely to result in convictions.[13]

A pre-charge screening pilot project, conducted at the RCMP detachments and three communities in Alberta, found that the screening process reduced the number of charges laid by 29% and cases started by 21%.[14] This data strongly suggests that reducing the overall number of charges will save scarce court resources, and minimize the disproportionate impact of over-charging on Black communities.

It is noteworthy that the fact of being charged, in and of itself or in conjunction with pre-trial custody, can have serious negative consequences for charged individuals in terms of financial hardship (job loss, legal expenses, etc.), diminished employment prospects, interrupted education pathways and reputational harm.[15] Provinces that have implemented pre-charge screening are better equipped to prevent charges that lack merit from entering the criminal justice system, which can mitigate some of these negative outcomes.

An examination of the crown policy manuals in provinces with pre-charge screening confirms that these systems can support initiatives to address systemic discrimination in the criminal justice system. For example, in British Columbia, the crown pre-charge screening process uses a two-part test to determine if charges should proceed.[16] At the first stage, the evidentiary test considers whether there is a substantial likelihood of conviction. If the first part of the test is satisfied, Crown counsel apply the public interest test. Factors that weigh in favour of not prosecuting an individual under the second stage include the over-representation of Indigenous persons as accused within the criminal justice system, and the role that bias, racism or systemic discrimination played in bringing the person into contact with the criminal justice system. Factors that weigh in favour of laying a charge include the over-representation of Indigenous women and girls as victims of violent offences.[17]

Ontario’s Crown Prosecution Manual includes a similar test.[18] However, Crown Attorneys are not instructed to screen all cases before the charge is laid. Ontario Crown Attorneys are also not explicitly directed to consider the impact of bias, racism or systemic discrimination.[19] Enabling Crown counsel to apply this equity lens to charges before Indigenous, Black and racialized persons are brought before the courts has the strong potential to reduce the over-representation of these groups in the criminal justice system.

 

2. Adopt and implement all appropriate legislative and regulatory standards, guidelines, policies and strict directives to address and end racial profiling and racial discrimination in policing

Ontarians understand that racial profiling is a systemic problem in policing. It has a profound collective and disparate impact on Indigenous, Black 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 police services and officers to make sure that discriminatory conduct is prevented. Legislative and regulatory standards, guidelines, policies and/or directives should:

1. Adopt the OHRC’s definition of racial profiling

To eliminate racial profiling from law enforcement, policy-makers should be guided by the most relevant definition of the practice. The OHRC advanced an updated definition of racial profiling in its Policy on racial profiling, which has repeatedly been cited as an important tool for how best to identify and address the harms of racial profiling.[20]

The Ontario Association of Chiefs of Police committed[21] to the seven principles in the Policy on racial profiling, and welcomed the recommendations it outlined.[22] Many community and advocacy groups have added their endorsement or support.[23] The Policy on racial profiling and the fundamental human rights principles it articulates are the foundation of the Memorandum of Understanding between the OHRC and Peel Regional Police, which seeks to eradicate systemic discrimination in policing in Peel Region through a comprehensive set of equity-centred reforms.

The updated definition acknowledges that racial profiling manifests in the acts, as well as omissions, of police:

Any act or omission related to actual or claimed reasons of safety, security or public protection by an organization or individual in a position of authority, that results in greater scrutiny, lesser scrutiny or other negative treatment based on race, colour, ethnic origin, ancestry, religion, place of origin or related stereotypes.

Note that not all police services in Ontario have a racial profiling policy.[24] The Province must take a leadership role on this and make sure all services enact a policy aimed at eliminating racial profiling, and that these policies adopt the OHRC’s definition of racial profiling. To standardize the approach across Ontario, all police services should be required to develop a policy on eliminating racial profiling from all aspects of their police service and employment practices. As well as developing policy, it is essential that police services ensure that their training on use of force, investigation practices and other relevant areas addresses systemic racial discrimination and racial profiling.

2. Regulate stop and question practices in non-arrest scenarios

A Disparate Impact shed light on TPS’s uneven stop and question practices in non-arrest scenarios. The data showed 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. Also, over one-quarter of all SIU cases involving Black people resulted from proactive police stops, compared to only 11.1% of cases involving White people.[25] 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. Further, a recent report published by Ryerson University’s Faculty of Law found that Ontario’s response to street checks does not go far enough. Among other findings, the researchers observed that rates of police contact have not been significantly reduced by the introduction of Ontario’s street check legislation.[26]

One way to address this problem is to limit an officer’s discretion to stop people in non-arrest scenarios, under Regulation 58/16.[27] The OHRC has consistently advocated for amendments to this regulation that will make it a more effective tool for addressing random stops and racial discrimination. For example, the circumstances where an officer is permitted to approach people in non-arrest scenarios to collect identifying information should be narrowed.[28] The current regulation frames these scenarios broadly, which allows for police to continue to use tactics that have a disproportionate impact on Indigenous, Black and other racialized communities.[29] Further, the regulation does not provide strict guidance to officers on their duty to inform people of their rights during a civilian-police encounter. The regulation also fails to: (a) notify subjects that the process is voluntary; (b) limit “suspicious” activity to circumstances that are objectively suspicious;[30] and (c) prohibit random “carding” street checks for general intelligence purposes.

In R v Le, the Supreme Court of Canada recognized:

Carding takes a toll on a person’s physical and mental health. It impacts their ability to pursue employment and education opportunities (Tulloch Report, at p. 42). Such a practice contributes to the continuing social exclusion of racial minorities, encourages a loss of trust in the fairness of our criminal justice system, and perpetuates criminalization (see N. Nichols, “The Social Organization of Access to Justice for Youth in ‘Unsafe’ Urban Neighbourhoods” (2018), 27 Soc. & Legal Stud. 79, at p. 86; see also Ontario Human Rights Commission, Under Suspicion: Research and consultation report on racial profiling in Ontario (2017), at pp. 31–40).[31]

In the OHRC’s view, all of these factors leave the current legislation vulnerable to arguments that it violates section 9 of the Charter in a way that may not be reasonably limited under Charter section 1.[32] The OHRC contends this situation could be remedied by repealing the regulation and prohibiting street checks consistent with Nova Scotia’s moratorium on street checks.[33]

3. Prohibit using race in suspect, victim or witness selection, unless the police are dealing with a sufficiently specific description

The OHRC’s Policy on racial profiling[34] includes a recommendation to prohibit using race in suspect, victim or witness selection, unless the police are dealing with a sufficiently specific description.

The policy states this it is not racial profiling for officers to “act on a reliable physical description of a particular suspect linked to a specific illegal incident where race or related grounds are descriptors alongside other personal characteristics and information.”[35] However, law enforcement officers cannot cast their investigative net widely on Indigenous and racialized individuals when dealing with speculative or vague suspect descriptions involving race. The OHRC posits that extraordinary caution must be taken when using criminal profiles that include race or related grounds, even if these are coupled with other objective factors.[36]

The OPP’s DNA sweep of racialized migrant workers in 2013 is an example of a troubling investigative technique that cast a wide net and failed to rely on a specific suspect description. In 2013, as part of a sexual assault investigation, the OPP requested DNA samples from almost all local migrant workers of colour. The OIPRD found that the DNA canvass was overly broad and was designed “to obtain DNA from every migrant worker of colour, regardless of his age, height, weight, the presence or absence of facial hair or other defining characteristics.” [37]

To avoid racial profiling, police responses to crime “should be tailored to address specific concerns, and should correspond to the needs the community has identified.”[38] Recommendations of this nature are integral to outlawing racial profiling and building trust with Indigenous, Black and other racialized communities.

4. Expand data collection by mandating race-based data collection and analysis across the spectrum of officer activities, including stop and question practices, charges and arrests

Currently, Ontario only requires race-based data to be collected on “use of force” incidents. This approach severely constrains the ability of police services to monitor systemic disparities in use of force incidents, as use of force reports are only created when physical force causes an injury that requires medical attention, among other reasons.[39] The OHRC has previously provided guidance to the Ministry of the Solicitor General and the Toronto Police Services Board on the necessary nature and scope of information to be collected for all use of force incidents, and incorporates those recommendations here.[40]

Since the regulation narrowly defines “use of force,” current reports fail to capture an array of serious use of force interactions that can result in harm and engender fear and mistrust in the community, such as take downs, restraints, pushes and shoves leading to lacerations, abrasions or severe bruises and other injuries such as muscle strains and pain, that do not lead to medical intervention. These incidents were referred to as “lower-level use of force” in A Disparate Impact.

The OHRC’s analysis found that Black people were grossly over-represented in TPS lower-level use of force cases. However, to uncover these disparities, the OHRC had to undertake an extensive and time -consuming analysis of injury reports,[41] which were laboriously cross-referenced with use of force reports and general occurrence reports to create a database of lower-level use for force incidents.[42] Provincial decision-makers and oversight bodies should not need to resort to tedious and manual cataloguing and cross-referencing to understand the overall and specific state of lower-level use of force by police services.

The Province needs to institute a more comprehensive use of force protocol to make sure the range of commonplace and expansive lower-level use of force interactions are documented and tracked. Police services across Ontario should collect demographic data on lower-level use of force. Failing to collect this data is a critical gap in the information police services need to meaningfully address disparate use of force rates. It is imperative that provincial standards mandate collecting race-based data on injury and use of force reports.

All Ontario police services should be required to collect race-based data across the full spectrum of policing interactions with civilians. This includes race-based data on stop and question interactions, as well as charges and arrests, and releases. Each service should continuously compile, measure, review and analyze the information to better understand the physical interactions officers engage in with the community. This data should be monitored through an Early Intervention System (EIS), which tracks and flags patterns in officer behaviour that warrant corrective action.

Applying consistent data collection standards for all Ontario police services will promote transparency and provide a measure of accountability for systemic racial discrimination. Failure to do so will undermine attempts to measure disparities and thwart the creation of evidence-based solutions.

Notably, part of Ontario’s vision for its Anti-Black Racism Strategy is eliminating disparate outcomes in the justice sector by 2024, in alignment with the close of the United Nations International Decade for People of African Descent.[43] To meet this goal, data collection efforts must be standardized and implemented without delay.

5. Implement early intervention systems (EIS)[44] in police services across Ontario

EISs capture race-based data to alert supervisors to potential racial profiling and racial discrimination by both individuals and platoons/units/divisions. Promoting Co-operative Strategies to Reduce Racial Profiling, the 2008 report commissioned by the U.S. Department of Justice’s Office of Community Oriented Policing Services, explained:[45]

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

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

To achieve positive outcomes, supervising officers must take meaningful corrective action when officer conduct crosses established thresholds.[46] Proactively prompting supervisory officers to check in with officers to address a questionable pattern of conduct enables speedier attention to potential problematic tendencies, and allows officers to receive support before misconduct occurs. In this way, EIS systems can promote trust in police services and advance community well-being.

 

3. Amend the Ontario 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 TPS. In A Disparate Impact, the OHRC found that the TPS lethal shooting rate for Black civilians was actually higher (7.29 per million) than the American lethal police shooting rate for Black civilians (6.99 per million). A study conducted by the CBC found that from 2000 to 2017, Black people in Toronto made up on average 8.3% of the population but represented nearly 37% of persons who suffered a fatal encounter with the police.[47] These alarming findings confirm the urgent need for stringent use of force standards and policies, to minimize officers’ use of force and reliance on serious or lethal options.

Although de-escalation is considered part of standard training, the underlying principles and techniques should also be emphasized in training, to address the disparities identified by the OHRC inquiries. In A Matter of Life and Death, an investigation into the direction provided to police services regarding the de-escalation of conflict, Ontario Ombudsman Paul Dubé found serious concerns about officer use of force training. Dubé found that officers receive “plenty of training on how to use their guns, but not enough on how to use their mouths.” He noted that officers are required to take annual training for their weapons, but there is no similar requirement for de-escalation.[48] The OHRC also notes that a team of researchers from the Carleton University conducted a survey of use of force training currently used by police services. The study found that the extent that de-escalation practices align with best practices remains unclear.[49] To produce positive outcomes, police services should be required to establish guidelines that call for integrating best practices for developing,[50] implementing[51] and evaluating officer training.[52]

The importance of training should not be understated, but it cannot operate in a silo. To effectively address excessive force, “issues beyond training improvements must be considered if we are to effectively minimize avoidable injuries and deaths when the police interact with the public.”[53] For example, Dubé’s investigation considered the impact of police culture on officer training, and recommended strategies to address the harmful impact of negative cultural practices on training.[54]

The OHRC recognizes that de-escalation techniques may sometimes still require applying some use force. In these circumstances, applying de-escalation can help mitigate or lower the degree of the use of force. All use of force reports should document what de-escalation strategies were deployed.

Accordingly, the Ministry of the Solicitor General should:

1. Institute a new use of force model that is easy to understand and clearly identifies de-escalation options, rather than just use of force options.[55]
   The current model should be renamed to acknowledge the emphasis on
   de-escalation[56]
2. 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
3. Clarify that the Use of Force Model is a code of conduct that carries a goal of not using lethal force, and a philosophy of using as little non-lethal force as possible; and that the model is not meant to be used as a justification for the use of any force[57]
4. Adopt firearm avoidance as a core principle by implementing dynamic scenario training where recruits learn how to proactively de-escalate and avoid drawing a firearm, emphasizing non-lethal means of stabilizing a situation and reducing the potential for over-reliance on lethal force[58]
5. Require officers to give a verbal warning, when possible, before using deadly force
6. 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
7. Require officers to intervene to stop another officer from using excessive force
8. 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) and require officers to document what de-escalation strategies were attempted in the first instance
9. Prohibit officers from shooting at moving vehicles, where possible.[59]

 

4. Civilianizing police services – provincial review

The current model of policing is no longer sustainable. Relying on officers who are armed with lethal use of force options to perform routine tasks, such as traffic enforcement and non-emergency wellness checks, diverts precious resources away from core public safety functions.[60]

The costs associated with sustaining the current model, in both large and small municipalities, leaves other community safety and well-being programs under-resourced and at risk. Indeed, municipal governments are routinely asked to provide sustainable funding for community safety and well-being services, such as shelters and responses to gender-based violence. These demands persist while police budgets continue to rise. To address these concerns, Ontario should accelerate efforts to modernize police services and commit to a pro-health model of policing and social services that recognizes the integrated interests at stake. Civilianizing[61] non-emergency police functions is a key component of the reform initiatives explored by the OHRC.

For example, the Toronto Police Service collaborated with local residents to explore the modernization of policing in 2016. They produced a report entitled The Way Forward, which stated:

The evidence and best practices from other jurisdictions and organizations confirm for us that the limits of the existing model of policing have been reached. The answer to outdated service-delivery cannot simply be more public funding. To contain costs and ensure value for money, fundamental change is needed.

The report included several recommendations aimed at civilianizing police services, including school crossing guards, reporting and follow-up functions, and traffic control duties.

The over-representation of Black and Indigenous persons in fatal police encounters[62] affects community-police relations across Ontario. Exploring the ways that civilians can address community safety and well-being will play an important role in addressing this issue. For example, increasing resources and support for civilian-led alternative crisis response models can help make sure that mental health and addiction related issues are addressed by people who specialize in de-escalation and safely diffusing emotionally volatile situations, and who are better able to check implicit biases due to specialized cognitive behavioural training. To this end, police services across Ontario should be required to undertake a review of the calls that officers are deployed to, and identify circumstances where it is safe to deploy civilian crisis response workers.

Also, research suggests that expanding to include civilians in the pool of candidates eligible to perform non-emergency police functions has additional benefits. Civilians with non-policing backgrounds present unique skill sets that can expand and advance the knowledge base of community safety or police services. Similarly, hiring civilians also relieves police services from meeting diverse human resources needs from within the existing ranks of the service.[63] As well, looking beyond the ranks of existing officers may allow police agencies to attract people from under-represented racial groups and other Code-protected communities.[64]

In 2013, the Ministry of the Solicitor General (then known as the Ministry of Community Safety and Correctional Services) examined modernization through the Future of Policing Advisory Committee (FPAC). Among other objectives, this committee sought to establish “a new community safety model involving multidisciplinary approaches and partnerships to resolve complex social problems” across Ontario.[65] In the OHRC’s view, work of this nature should be continued and expanded to explicitly examine opportunities to address systemic discrimination in policing through civilianization. A pilot project in this area could help generate provincial guidelines that will support police services across the province.

 

5. Amend section 17 of the Mental Health Act[66] to facilitate non-police responses to issues related to mental health, substance use or homelessness

For many years, communities and advocates have strenuously demanded reform in how mental health calls are answered across Ontario. Today, we know that even police services want help to alleviate the burden of responding to mental health crisis calls. The OHRC repeatedly hears from police officers that they are not mental health workers. Media have cited the Solicitor General as reporting that mental health and substance use-related calls account for over 40% of 911 emergency police calls.[67]

While we applaud recent investments to expand mobile crisis teams, the OHRC is concerned that there is a patchwork of attempts in different regions to improve the situation. This patchwork is essentially an assortment of efforts to work around the Mental Health Act (MHA). Further, the OHRC notes clear and significant intersections between racial bias and how the police respond to people experiencing mental health issues. The OHRC is deeply concerned when a police response to a 911 call for help because someone is in mental distress results in death, as we have seen in many cases in different parts of the province.

Indeed, the police response to racialized persons in crisis has far too often produced deadly outcomes. The shooting deaths of Albert Johnson, Lester Donaldson, Edmond Yu, Bryon Debassage, Wayne Williams, Andrew Loku, Michael Eligon Sammy Yatim, Marc Ekamba-Boekwa, Jermaine Carby, Joey Knapaysweet, Ejaz Choudry, Greg Ritchie and D’Andre Campbell represent only a sampling of the racialized and Indigenous peoples in crisis who have been fatally shot in an encounter with the police. This list shows this is a provincewide problem.

In the cases of Choudry and Campbell, the victims’ families called for assistance to help address the persons’ mental health symptoms. The police response to Ekamba-Boekwa resulted in a police officer firing 19 shots, 11 of which struck Ekamba-Boekwa. Seven shots sprayed onto a residential street, and one struck Suzan Anissy Zreik, a police foundations student who was in her own home.[68] Caleb Tubila Njoko and Regis Korchinski-Paquet both fell to their deaths in separate incidents in 2020, after the police were called to address their mental health episodes. Each of these tragedies has had a lasting detrimental impact on community-police relations. These tragedies also call into question the value of sending armed, uniform officers to mental health-related calls.

The OHRC and a long list of community stakeholders are concerned that section 17 of the MHA mandates a police response to persons experiencing mental health issues. This continues a dysfunctional cycle of exposure to law enforcement for people who primarily need health recovery services. Sending law enforcement as first responders risks significantly aggravating the mental health episode, and denies citizens the key services they need – the prompt support of mental health professionals, who, unlike police officers, are experienced at de-escalating, stabilizing and supporting persons in crisis.

The OHRC is also concerned that section 17 of the MHA reinforces stereotypical assumptions that mental health issues are an issue of criminalization requiring police intervention.[69] Police attendance at these calls increases the stigma associated with mental health conditions, and reinforces the misperceptions about people with mental health and/or substance use issues as violent, volatile or prone to criminal activity. We know that due to racial bias casting racialized people, especially Black men, as aggressive or dangerous, a racialized person experiencing a mental health episode is doubly disadvantaged, and therefore at greater risk of an altercation with police.

A low-barrier non-police response to calls related to mental health, substance use or homelessness should be available in all regions. Provincial legislation must facilitate a comprehensive and systematic transition away from a police-led crisis response model to a holistic, pro-health model that prioritizes de-escalating mental health or substance abuse emergencies. Across Ontario, 911 should not be the default option for people experiencing mental health crisis, because the research reveals, and recent tragic events confirm, that this response has a disproportionate and harmful impact on racialized communities.

The OHRC has consulted with the Canadian Mental Health Association (CMHA) about best practices for first response crisis services, and we are aware of the successful models that integrate public health and safety that the CMHA has undertaken in partnership with some Ontario police services. The CMHA’s London Mental Health Crisis and Addiction Service[70] and 24.7 Crisis Support Peel[71] are examples of the type of health-care-led crisis response model that should be implemented across Ontario. The existing models in London and Peel have successfully diverted significant numbers of calls away from police services and reduced the strain on local hospitals, have provided prompt crisis intervention to people in their time of need, and have created a referral system so the person gets ongoing support in the community.

Previously, in Peel region, approximately 80% of mental health crisis calls resulted in police apprehending and accompanying people to emergency departments. With the mobile crisis response teams, Peel is experiencing an extraordinary reversal with almost 80% of cases being diverted and 20% relying on police apprehension. By reducing apprehensions, the system sees cost savings in policing and emergency department resources, and community members receive real-time and continuing support. Peel reports that to adequately address the community’s needs for mobile crisis response, the program would need to expand three-fold.

Although some aspects of these programs have significant merit, the London and Peel initiatives are effectively piecemeal workarounds to an overarching provincial problem related to section 17 of the MHA. The continued success and expansion of these programs hinges on amending section 17, on sustainable funding, and on a willingness to replicate these services provincewide. It is essential that Ontario introduce an expansive, integrated, pro-mental health approach for all police services. Such a provincewide approach will improve civilian and officer safety by reducing the likelihood of injurious interactions, improve community relations, reduce citizen complaints and support a human rights-centred approach to policing.

On January 20, 2021, the City of Toronto announced plans to launch a community safety and crisis response program that “would allow for non-police-led response for non-emergency, non-violent calls including those involving persons in crisis and for wellness checks.” This pilot program was developed in response to Toronto Council’s recommendation to develop an alternative model of community safety response,[72] and is another example of the pressing need for a health-care-focused response service.[73]

The Province must create a legislative framework and contribute sustainable funding to allow for an infrastructure of trained mental health professionals to lead the response and care provided to people experiencing crisis in all parts of Ontario. Ontario has an opportunity to improve first-response crisis services, enhance capacity to support police, and promote a pro-recovery model of care that reduces discriminatory conditions and more efficiently and effectively deploys public resources.

 

6. Review School Resource/Liaison Officers provincially

Police services across Ontario engage with young persons in the public education system, often to detain, control or apprehend students for what is perceived as disruptive behaviour. Research shows that police engagement and school-based arrests disproportionately affect racialized students and students with disabilities. Often, police assigned to schools are not there because of an affinity to work with youth or specialized adolescence training, but because of scheduling arrangements.

Implicit biases held by school administrators and police lead to criminalizing the conduct of racialized students, commonly known as the “school to prison pipeline.” Racialized students are more likely to be disciplined, suspended and arrested in school when police are present, and do not think police presence contributes to their sense of safety and security. Similarly, a recent study by the Ottawa-Carleton District School Board highlighted concerns that police are inappropriately used to respond to outbursts of behaviour by students with disabilities, which also leads to the criminalizing students with disabilities.[74]

Students and families report significant disparities between what Black and Indigenous children and children with mental disabilities experience during their contact with police in schools, compared to what their non-racialized and able-bodied peers experience. The Latin American Education Network hosted an education forum, which was sponsored
by the TDSB, TCDSB and the OSSTF. This forum canvassed issues experienced by racialized students who attend schools with an assigned officer. Many youths expressed concern with the presence of police in schools, as it led to feelings of being “policed,” “profiled” or feeling otherwise marginalized in school.[75]

Similar experiences were reported in Peel Region. The Peel District School Board decided to end their School Resource Officer program in November 2020, after extensive community consultation. The Interim Director of Education for the PDSB stated: “We have heard from members of our school communities, in particular those who identify as Black and Indigenous, that they do not feel safe when SROs and other police officers are present in Peel schools."[76] A news release issued by Peel Regional Police noted: “It was evident during the consultation phase that the current SRO program caused a negative impact on segments of our student population."[77] 

The Ottawa Carlton District School Board reported similar findings in its review of their SRO program and all legally discretionary[78] activities of officers. As part of the review, Indigenous, Black, LGBT2SQ+, and the community of people with disabilities, among other groups, shared their perspectives on the role of officers in schools. Survey research conducted as part of the review showed that 62% of Black respondents,[79] and 68% of LGBT2SQ+ respondents,[80] disagreed with the idea that officers make school a safer place. Similarly, 43% of Indigenous survey respondents disagreed with the notion that officers make them feel like school is a safer place.[81] Fifty-one per cent of the community of persons with disabilities did not feel that officers make them feel less worried about problems like bullying, drugs, weapons and vandalism.[82]

The survey also captured qualitative findings about the experiences of students in school with officers. For example, one Black student reported:

I wonder who is feeling more safe with the police? Whose safety is it for? Cause I know I don’t personally feel more safe, I feel uncomfortable around the police, even when they’re not in my school that often. I feel uncomfortable, especially when they are armed. That just feels dangerous, not safe.[83]

An Indigenous parent told the reviewers:

It's not the officer that’s the issue. It's the colonial history of being policed that is the problem. The fact that they are wearing a uniform is not a signal of trust and safety. The stigma against police officers is from our intergenerational trauma of being over-policed. Fear and hesitance in approaching a police officer is very much warranted because of the history that has been put upon us as a People...

In response to concerns raised by racialized students, the shape of this engagement has shifted. For example, as of November 2020, the Toronto, Peel and Hamilton-Wentworth District School Boards have ended their SRO programs over concerns that racialized students felt unwelcome when uniformed officers were present at school.

Sensitivity to the lived experience of racialized students in Ontario classrooms must remain a top concern as we work to improve student achievement for this group. Education Minister Stephen Lecce’s decision to end the “discriminatory”[84] practice of academic streaming signals the provincial government’s commitment to improving outcomes for Black and other racialized students.

A provincial review of SRO programs is a necessary next step to make sure Black, racialized and Indigenous students and students with disabilities consistently benefit from welcoming and inclusive learning environments. The provincewide review must examine the impacts of the SRO program on students, and must be centred on the lived experiences of students, who are the most disproportionately affected. This is in accord with the position of the Ontario Association of Chiefs of Police, which has stated that “it is time for police leaders to support evidence-based SRO research, particularly with respect to evaluation that places the experiences of BIPOC students front-and-centre.”[85] Additionally, during the period of the review, the Ministry of Education should direct school boards to publicly engage with disability, Black, racialized and Indigenous communities to determine whether to defer or discontinue SRO programs pending the completion of the review.

 

7. Amend the Police Services Act and/or the Community Safety and Policing Act, 2019, so there is greater transparency on police discipline

Provincial law must provide for transparent and effective accountability processes to make sure that officers, units, divisions or services are continuously and effectively monitored for factors that indicate practices or trends of racial profiling or discrimination, and, when necessary, properly disciplined. The current status quo provides no comprehensive and systematic monitoring systems or tools. For example, the OHRC has been unable to identify how – or even whether – TPS officers face accountability for engaging in racial discrimination. In large part, this is due to stringent confidentiality provisions in policing legislation that prevent disclosure about disciplining officers.

The Police Services Act’s current confidentiality provisions prevent the public from knowing when and whether an officer was subject to some form of discipline for engaging in racial profiling, racial discrimination or other police misconduct.[86] Only decisions from police service disciplinary tribunals are not confidential. This severely undermines public confidence in a system that must be transparent and grounded in the values espoused by the Human Rights Code.

For example, in 2011, an officer from Durham Regional Police received informal discipline after engaging in conduct that members of the public would likely consider serious. Unbeknownst to the officer, the misconduct was captured on video. In the video, the officer can be heard telling a young man “you give me attitude and I’m gonna f---ing drag you uptown. I’m gonna say you assaulted me. I’m gonna say you threatened me.”[87] The officer’s misconduct was not required to be disclosed in court because it was addressed informally.

Similarly, several officers were disciplined informally for removing their name tags and turning off their in-car cameras during the G-20 summit in Toronto. Officer conduct during the summit led to widespread community concern and a systemic review by the OIPRD. This response calls into question the decision to address misconduct related
to this event with informal discipline, which is not disclosed to the public. To address the ambiguity and lack of transparency that surrounds the types of cases that may be subject to informal discipline, clear guidelines should be established in the regulations to the CSPA or the Comprehensive Ontario Police Services Act (COPSA).

Transparent investigations into police conduct are integral to the disciplinary process. However, additional gaps in the current legislation prevent the public from being aware of actions police take to investigate a matter. For example, under section 11 of O. Reg. 267/10 of the Police Services Act, municipal police chiefs are required to investigate matters where the SIU is notified.[88] Chiefs are also required to produce a copy of their investigative report to their police services board. Boards have the discretion to make these reports public. To advance transparency, reports of this nature should be routinely disclosed to the public by the board. However, language that would crystalize this requirement is absent from the PSA and section 81 of the COPSA.[89] In light of the public’s demand for greater transparency when the SIU is engaged, this gap should be addressed in the forthcoming regulations to the COPSA.

Police services must also improve supervision and deterrence to address anti-Black racism, racial profiling and racial discrimination, subject to principles of progressive discipline. When their behaviour substantively exhibits the indicia of racial profiling, officers must face remedial action, up to and including dismissal for egregious misconduct – a recommendation endorsed by 22 community and advocacy groups in the OHRC’s submission to the provincial government on its review of policing.[90]

 

8. Make sure 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 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. The law must make sure that such findings by courts, human rights tribunals and other adjudicative bodies result in appropriate discipline.

The current system produces gaps that undermine public confidence in police oversight.[91] The OHRC has identified eight recent court or HRTO decisions where Black people were the victims of racial profiling or racial discrimination by TPS officers,[92] and at least five additional decisions where courts or tribunals have made findings that are clearly consistent with racial profiling or racial discrimination of Black people by TPS officers.[93] Only two were the subject of Notices of Hearing, and only one decision resulted in an officer appearing before the TPS Disciplinary Tribunal. The ability of police services to govern the conduct of their members in accordance with the PSA is severely undermined when acts of discrimination do not consistently result in some form of remedial proceeding or sanction.

 

9. Amend the Police Services Act and/or the Community Safety and Policing Act, 2019, so there is independent investigation of police complaints

In consulting with Indigenous, Black and other racialized communities, the OHRC has found there is a deep distrust of the current public complaints process. There is a clear apprehension of bias where police officers of the same service are tasked with investigating the conduct of their fellow officers. In his Report of the Independent Police Oversight Review, the Honourable Justice Michael Tulloch echoed and confirmed these concerns. Currently, most public complaints in Ontario about municipal and provincial police officer conduct are not independently investigated.

In 2018–19, 90% of public complaints were investigated by the same police service the complaints were filed against. The Province should mandate that all investigations and adjudications of police misconduct be carried out by an independent body, and that misconduct be determined on the civil standard of a balance of probabilities.[94]

Consistent with the OHRC’s positon that complaints related to individual or systemic racism should be addressed by an independent body, we note that at its June 29–30, 2020 meeting, Toronto Council formally requested that the Province of Ontario amend the PSA and the Community Safety and Policing Act, 2019 (CSPA), to require that complaints alleging 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 this request, and urges Ontario to adopt it as part of its commitment to address systemic racism in policing.

 

10. Amend the Special Investigations Unit Act, 2019 to allow police services to share information with the public while an SIU investigation is ongoing

Section 28 of the Special Investigations Unit Act, 2019 (SIU Act)[95] provides that the police service and members of a service cannot disclose information while an SIU investigation is ongoing, unless such disclosure is permitted by the SIU Act, the PSA, or the regulations to these acts.

The SIU Act should be amended to allow greater disclosure to the public during an SIU investigation, such as by allowing any in-car or body-worn camera footage of the incident to be released publicly before their investigation has concluded. The Act should also be amended to share information publicly about the status of the subject officer while the SIU investigation is ongoing.[96] The public should know whether a subject officer is still on active front-line duty, or has been assigned elsewhere in the service limiting interaction with the public. The OHRC has heard directly from communities their concerns that officers who have used excessive force against a civilian may remain in a position to repeat that harm while an SIU investigation is ongoing.

Allowing the SIU Director to make public statements about ongoing investigations in appropriate circumstances, as outlined in Section 29 of the Act,[97] does not go far enough. To promote the transparency of SIU investigations, the Director or their designate must be empowered to release evidence gathered during the investigation where such disclosure would not infringe the privacy rights of civilians.

In addition to concerns about disclosing information, the legitimacy of SIU investigations has routinely been called into question because of the protections provided to subject officers during the process. For example, subject officers are not required to hand over their incident notes or take part in an interview. These restrictions further obscure the operations of the SIU, and cause the public to question findings from these investigations.

The SIU’s inability to compel a subject officer to take part in an interview has compromised investigations in serious ways. For example, in one incident, the SIU Director found evidence of excessive force when a civilian suffered facial injuries during an encounter with police. His findings were undermined by the subject officers’ decision to not submit their notes or take part in an interview. The officers in this incident were clad in ETF gear during the incident, including masks and helmet, and could not be identified. As a result, the SIU could not proceed with the charges.[98] The SIU Director publicly stated: “But there’s no doubt there will be cases where there are gaps in that story because we haven’t heard from the subject officers.”[99]

In repose to this issue, Justice Tulloch’s report on civilian oversight recommends that subject officers be required to disclose notes to SIU investigators.[100] Justice Tulloch further attempted to strike a balance between an officer’s right to silence and the public’s interest in fair and transparent investigation, by recommending: “The Attorney General’s directive granting immunity for subject officers’ notes and statements in SIU prosecutions should be re-assessed in light of subsequent jurisprudential developments.”[101]

The OHRC supports these recommendations as a priority issue in the context of modernizing the system, with an understanding of the implications of withholding notes when considering issues of systemic discrimination, and calls on the Province to re-examine this issue.

 

Conclusion

The OHRC is pleased to engage the Province on these steps, which are essential for eliminating discriminatory practices from policing across Ontario. We look forward to working with the Province to implement reforms that will reduce the disparities identified by previous reports, satisfy the objectives of the Ontario’s Anti-Racism Strategic Plan, and promote community safety and well-being.