Proposed Adequate and Effective Policing (General) Regulation under the Community Safety and Policing Act, 2019

Ministry of the Solicitor General
Strategic Policy Division
25 Grosvenor Street
Toronto, ON M7A 1Y6

Re: Proposed Adequate and Effective Policing (General) Regulation under the Community Safety and Policing Act, 2019

The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide this submission on the proposed Adequate and Effective (General) Regulation (the Regulation) under the Community Safety and Policing Act, 2019 (CSPA).

Background to the OHRC

The OHRC is a statutory human rights body established under the Ontario Human

Rights Code (Code) and is responsible for promoting and advancing human rights and addressing systemic discrimination in Ontario.

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

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

Recommendations

Complying with the Code is central to adequate and effective policing in Ontario. Discrimination in policing creates mistrust that undermines effective policing and ultimately public safety. The Declaration of Principles (section 1) of the CSPA recognizes the importance of safeguarding rights under both the Code and the Canadian Charter of Rights and Freedoms (the Charter). Section 11, states that adequate and effective policing means that policing functions must be provided according to the requirements of the Code and the Charter. Also, CSPA states that regulations will set standards for adequate and effective policing functions.

The proposed Regulation sets out standards with respect to crime prevention; law enforcement; maintaining the public peace; emergency response; and assistance to victims of crime among other functions. However, it does not contain any standards on how to help ensure police services comply with the Code and Charter as required for adequate and effective policing. The regulations under the CSPA will play an important role in setting standards and ensuring consistency in policing across the province. It is therefore vital that they reflect a human rights-based approach to adequate and effective policing and provide specific guidance to police services about what compliance with the Code means in practice.

Based on its extensive experience advocating against systemic discrimination in policing and for ensuring police services meet their obligations under the Code, the OHRC recommends the following changes to the proposed Regulation.

1. Emphasize that adequate and effective policing means complying with the Code and Charter and indicate how socio-demographic characteristics can and cannot be used in decision-making

The proposed Regulation does not mention the obligations under the Code or Charter and does not incorporate a human rights-based approach to policing. Where it identifies relevant factors for policing functions (section 2), it does not contain safeguards to ensure that those factors are applied having regard to human rights.

For example, the proposed Regulation defines “policing needs of the community” solely having regard to crime-related indicators and does not indicate how “socio-demographic characteristics of the police service’s area of policing responsibility” may or may not be used. This raise concerns as, historically, this information has been used to over-police and under-police certain communities such as Black, Indigenous and other Code-protected groups.

It is essential that the proposed Regulation emphasise the relevant factors for adequate and effective policing must include compliance with the Code and Charter and provide some guardrails to ensure that identity characteristics, which have directly or indirectly been misused, are not improperly used as the basis for policing functions.

2. Ensure that the written procedures chiefs of police must establish are consistent with rights guaranteed in the Code and Charter and expand the list of required procedures

Several sections of the proposed Regulation require chiefs of police to establish prescribed written procedures. Notwithstanding, there is no requirement that procedures must comply with the Code. This could be important for procedures that govern matters where there is a higher risk of discrimination (for example, community patrol, searches, charges and arrests, bail and mobile mental health and addictions crisis teams). The sections of the proposed Regulation that prescribe procedures should contain general statements that all procedures shall reflect and acknowledge the importance of, and respect, rights under the Code and Charter.

Additionally, consistent with other proposed Regulations under the CSPA,[iii] the proposed Regulation on adequate and effective policing should indicate what specific prescribed procedures should address from a human rights perspective. For example, the required procedure on community patrol, including where directed patrol is considered necessary and appropriate based on “the policing needs of the community”, should state that the procedure shall ensure that patrol decisions are being made having regard to human rights principles, including ensuring socio-demographic factors (such as race) are not improperly used in decision-taking.

It is noteworthy that the list of required procedures as drafted does not include procedures on several matters that are important from a human rights perspective. The OHRC recommends that the list of required procedures include Code-compliant procedures on human rights; racial profiling; stop and question; laying a charge; data collection, analysis and reporting; use of body-worn cameras; and the acquisition, use and oversight of artificial intelligence (including facial recognition and predictive policing algorithms).[iv] In addition, all police services should be required to have a procedure to monitor and publicly report on all Code and Charter breaches found by courts and tribunals.

3. Encourage the use of non-police response options to persons who are in crisis and provide guidance on police response in such situations

The provisions dealing with emergency response requirements (s. 9(1) 2.) do not mention non-police response options for calls related to mental health, substance abuse or homelessness. The OHRC’s Framework for change to address systemic racism in policing states:

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 regulation should indicate that non-police response must be used in regions where it exists and other regions should, at minimum, endeavour to include non-police response options in their calls for service.

Although the proposed Regulation requires chiefs of police to have procedures for police response to persons who are in mental health crisis, there is no guidance on what those procedures must contain. Once again, it is important that the proposed Regulation not only require police services to have such procedures but also contain parameters to ensure that human rights are protected.

Conclusion

The CSPA recognizes that adequate and effective policing requires safeguarding human rights. Any Regulation that sets standards for what adequate and effective policing means should provide guidance to police services on what this requires in practice. The proposed Regulation, as currently drafted, does not do so adequately. If implemented, the OHRC’s recommendations will help ensure that a human rights approach informs policing functions across the province.

Thank you for the opportunity to make this submission. The ORHC looks forward to engaging with the Ministry of the Solicitor General about its recommendations.

[i] Other resources include: