Submission of the OHRC to the Ombudsman’s Investigation into the direction provided to police by the Ministry of Community Safety and Correctional Services for de-escalating conflict situations

Submission of the Ontario Human Rights Commission to the Ombudsman’s Investigation into the Direction Provided to Police by the Ministry of Community Safety and Correctional Services for De-escalating Conflict Situations

July 2014

People with mental health disabilities are often among the most vulnerable people in Ontario. Many face a unique set of challenges where they live, in workplaces, or in our communities. When people are in crisis they also present a unique set of challenges to police services when considering the use of force.

This leads to many concerns from a human rights perspective. It is not the role of the Ontario Human Rights Commission (OHRC) to comment on individual cases – we leave it to other experts to resolve these. But it is our role to look at common themes and concerns, and offer ways to move forward.

We appreciate the opportunity to provide our perspective for your review of the direction provided to police by the Ministry of Community Safety and Correctional Services (MCSCS) for de-escalating conflict situations. Our submission examines the role of relevant policies and guidelines set by MCSCS. Many of our recommendations would apply to police services across Ontario and call for appropriate direction from MCSCS.    

We have already seen, and continue to see, many cases where people with mental health issues have come into contact with police, sometimes with disastrous results. And we hear about these issues often from people and organizations in the community. We have also heard concerns about how police use of force affects other marginalized groups in Canadian society, including people who are racialized and Aboriginal Peoples. 

There is little new in these concerns – sadly, they have all been raised before, but have not yet been resolved. Some of the themes discussed in this submission were presented to the Coroner’s jury in the Inquest into the Deaths of Reyal Jardine-Douglas, Sylvia Klibingaitis, and Michael Eligon. Many of the jury’s recommendations, released on February 12, 2014, echo the OHRC’s. Examples include the need to collect and analyze use of force and human rights-based data, provide integrated, scenario-based training, expand the availability of mobile crisis intervention teams, consult with consumer/survivor groups, and further study the use of conducted energy weapons (CEWs).    

The OHRC has also submitted the recommendations presented here to the Independent Review of the Use of Lethal Force by the Toronto Police Service led by the Honourable Frank Iacobucci, and to the Office of the Independent Police Review Director’s Systemic Review of the Toronto Police Service’s (TPS) Use
of Force.

The challenge will be to put recommendations into action – and the time to do that is now.

Barbara Hall, BA, LL.B, Ph.D (hon.)

Chief Commissioner
Ontario Human Rights Commission

Overview

Human rights issues emerge when considering the use of force. Police services have an obligation to provide a service environment free of discrimination to people with actual and perceived mental health disabilities, including people who are racialized or are otherwise protected under the Human Rights Code (the Code).

This submission outlines human rights principles, concerns and recommendations for action in the following areas:

• Conducted energy weapons
• Training
• Developing policies and procedures
• Data collection and reporting
• Mobile crisis intervention teams
• The use of the term “Emotionally Disturbed Person”
• The provincial use of force model.

We recognize that the number of interactions between people with mental health disabilities and police has increased significantly. We acknowledge that in most cases, police officers do a difficult and stressful job in a professional way that respects human rights. We also recognize that officer and public safety are important and essential considerations.

This submission draws on many examples from the TPS because it has done extensive work toward resolving many of the challenges we identify. However, many of our recommendations would apply to police services across Ontario and call for appropriate direction from MCSCS. As the ministry responsible for overseeing police services in Ontario, creating and updating the Policing Standards Manual, and inspecting police services to make sure they are complying with the Police Services Act, the direction MCSCS provides on police use of force and mental health is crucial to help police services provide an environment free of discrimination.

The Ontario Human Rights Commission

The OHRC is a provincial statutory agency responsible for promoting and advancing human rights, and preventing discrimination in Ontario. To carry out its mandate, the OHRC has many proactive powers under s. 29 of the Code. These include identifying and monitoring systemic human rights issues, making recommendations to eliminate discriminatory practices, developing human rights policies, providing public education, conducting research, initiating reviews and inquiries, and engaging in strategic litigation on human rights and discrimination matters before courts and tribunals. The OHRC’s mandate includes making submissions to government and other bodies to promote a greater understanding of human rights law and principles.

As a result of over 50 years of experience in addressing human rights issues in Ontario, the OHRC has substantial expertise in identifying, characterizing and eradicating many forms of discrimination. In particular, the OHRC has expertise in human rights issues and concepts related to mental health and policing. 

The OHRC is currently working with MCSCS and the Ministry of Government Services on a human rights project. The project partners are jointly working to identify and eliminate potential discrimination in MCSCS employment and service activities, including discrimination against people with mental health disabilities. 

We worked on a similar project with the TPS and the Toronto Police Services Board (TPSB), and are currently working with the Windsor Police Service, the Windsor Police Services Board and the Ontario Police College on a multi-year human rights organizational change project. Highlights of these partnerships include creating policies relating to discrimination against persons with disabilities in the workplace and in services, and accommodating persons with disabilities in the workplace and in services. Overall, these collaborative efforts aim to embed human rights in all aspects of the organizations’ operations, including how services are provided to persons with mental health disabilities.

Recently, the OHRC intervened in Jahn v. Ministry of Community Safety and Correctional Services at the Human Rights Tribunal of Ontario, to address the systemic issues that led to Ms. Jahn not receiving appropriate mental health services and being placed in segregation. The OHRC, MCSCS and Ms. Jahn reached a settlement that makes great strides in ensuring the proper identification and care of women with mental health disabilities in provincial correctional institutions. 

Mental health has been a strategic priority for the OHRC since 2009. We conducted a province-wide consultation on human rights, mental health and addictions, and published Minds that Matter: Report of the consultation on human rights, mental health and addictions (See Appendix A). This report is based on over 1,500 submissions from consumer/survivors, advocates, organizations and other individuals across the province. It sets out recommendations for government, housing providers, employers, service providers and other stakeholders, as well as a series of OHRC commitments, in an effort to reduce discrimination based on mental health and addictions in Ontario. Flowing from the invaluable input received during the consultations for Minds that Matter, the

OHRC developed its Policy on preventing discrimination based on mental health disabilities and addictions (See Appendix B), which provides a comprehensive overview of human rights issues affecting persons with mental health disabilities and addictions in Ontario. 

The Ontario Human Rights Code

The Ontario Human Rights Code provides for equal treatment without discrimination in services, including policing. Therefore, the Code applies to the policies, practices and conduct of all police services in Ontario (with the exception of the Royal Canadian Mounted Police which falls under the jurisdiction of the Canadian Human Rights Act). The Code has primacy over all other legislation in Ontario, unless the other legislation specifically states that it applies despite the Code. This means that if another piece of legislation contains a provision that conflicts with or contravenes the Code, the Code will prevail.

The Code prohibits discrimination based on personal characteristics, called “grounds.” These are: citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex (including pregnancy and breastfeeding), family status, marital status, sexual orientation, gender identity, gender expression, receipt of public assistance (in housing) and record of offences
(in employment). The ground of disability includes past, present and perceived mental health disabilities.

The Code protects against both direct discrimination and adverse effect discrimination. People may experience direct discrimination based on their identification with a Code ground or grounds. An example of direct discrimination might be an employer telling a person they can’t have a job because they have a disability. This kind of discrimination may be based on stereotypes that are consciously or unconsciously held about a particular group.

Stereotyping involves making assumptions about a person based on the presumed qualities or characteristics of the group they are perceived to belong to. For example, during the consultations for Minds that Matter, we heard concerns from advocates about hospitals routinely calling security when a patient’s file contained a mental health diagnosis, based on the stereotype that people who have certain mental health disabilities are more dangerous or violent.[1]

Adverse effect or constructive discrimination results from practices, policies, rules, standards or other factors that appear to be neutral, but have a negative impact on some people and groups based on their identification with a Code ground. Organizations may develop policies, guidelines and practices that exclude people who are protected under the Code or fail to take into account their actual needs and circumstances. This can be a type of “systemic discrimination.”

Adverse effect discrimination is more common than direct discrimination in Canadian society, and is also harder to detect. Organizations may not be aware that they are engaging in adverse effect or systemic discrimination. Adverse effect and/or systemic discrimination can also overlap with other forms of discrimination to further disadvantage marginalized groups. For example, the adverse effect of an organization’s policy on persons with mental health disabilities can be compounded if the staff person administering the policy has discriminatory attitudes.

Some policies, rules or standards that have an adverse effect on a particular group or groups may nevertheless be justified. For example, an organization may be able to show that a policy, practice or standard that has a negative impact is linked to a significant and real health and safety concern. However, the organization still needs to show that it cannot take other steps to address the real and significant health and safety concerns without undue hardship.

A person may also experience discrimination based on several overlapping and intersecting aspects of their identity. For example, a young Black man can be seen as a “Black person” or as a “young person” or as a “man.” All these aspects of identity overlap and may also intersect in a socially significant way. This person may face discrimination based on any of the individual grounds of race and/or colour, age and gender. However, the person may face a unique intersectional form of discrimination when identified as a “young Black man” based on the various assumptions and/or stereotypes that are associated with this socially significant intersection.

During the consultations for Minds that Matter, we heard that people with mental health issues or addictions face unique or distinct forms of discrimination based on their identification with two or more Code grounds. For example, we heard that young African Canadian men with a psychiatric disability find it harder to get housing due to stereotypes related to race, age, gender and disability.[2]

The same kind of intersectional discrimination can happen with other Code grounds, such as gender identity, sex, creed, ancestry (including Aboriginal ancestry), marital status and disability (including mental health disabilities). Again, assumptions and stereotypes can come into play.

1) Conducted Energy Weapons (CEWs, commonly known as tasers)

On August 27, 2013, MCSCS announced that all police forces are allowed to decide which officers can carry CEWs. In the past, CEWs or tasers were restricted to certain designated officers, such as members of tactical units, hostage rescue teams, containment teams and front-line supervisors.[3]

The OHRC does not have expertise in use of force options, and does not take a specific position on using or increasing the deployment of CEWs. However, the current and potential future increased use of CEWs raises a number of human rights concerns because:

• people may be tasered due to inappropriate or stereotypical assumptions about mental health disabilities
• people with mental health disabilities as a group tend to have more frequent contact with the police[4] and may be more likely to be tasered because of behaviours and responses to police instructions that may seem unusual or unpredictable
• people with certain mental health disabilities may be more likely to die after being tasered.

Persons with mental health issues may be more likely to be tasered.[5] They may behave in ways that are seen as unusual and may not comprehend or respond to police officer instructions in a predictable way based on the behaviour of others.[6] They may also be at a greater risk of death when they are tasered if they are experiencing “acute psychiatric decompensation” or are in a “drug induced toxic state.”[7] A recent study that analyzed taser-related deaths in Canada indicated that people with addictions may be disproportionately likely to die after being tasered. The researchers found that 16 of 26 taser-related deaths in Canada involved persons with “chronic drug problems.”[8]

A recent report entitled “The Health Effects of Conducted Energy Weapons: The Expert Panel on the Medical and Physiological Impacts of Conducted Energy Weapons” (the Goudge Report) reviews and discusses several studies that explore the impact of the use of CEWs on the health of persons who have mental health disabilities. The report concludes that there is not enough data available to draw any definitive conclusions about the impacts of CEW use on health, and cannot be used to show a causal relationship between the use of CEWs on individuals with a mental health disability and a negative physical or mental health outcome. However, the report also states that given the “potentially greater negative interaction between CEWs and compromised health status of some individuals with mental disorders, this area is a priority for research.”[9]

In the Inquest into the Deaths of Reyal Jardine-Douglas, Sylvia Klibingaitis, and Michael Eligon, the jury also recommended that MCSCS “commission a study of CEWs to determine if there are any special risks or concerns associated with the use of this device on EDPs [Emotionally Disturbed Persons].”[10]

To justify the use of tasers where it is found to result in discrimination, it is essential that the MCSCS and all police services across Ontario take steps to the point of undue hardship to minimize the adverse impact of use of CEWs on persons with perceived and actual mental health disabilities, including addictions. These steps also apply to other use of force options. Police services should ensure that appropriate policies and procedures are in place to encourage the use of de-escalation wherever possible, and to use the least amount of force necessary in the particular circumstances.

This is also consistent with several of the recommendations from the Inquest into the Deaths of Reyal Jardine-Douglas, Sylvia Klibingaitis, and Michael Eligon.[11]

MCSCS sets guidelines for police use of force in Ontario. Their revised guidelines state that a Chief of Police may permit an officer to use a CEW when:

1. the officer believes a subject is threatening or displaying assaultive behaviour or, taking into account the totality of the circumstances, the officer believes there is an imminent need for control of a subject; and
2. the officer believes it is reasonably necessary to use a conducted energy weapon, which may involve consideration of the following factors:
   1. whether efforts to de-escalate the situation have been effective;
   2. whether verbal commands are not practical or are not being followed;
   3. the risk of secondary injury (e.g., as a result of a fall); and
   4. the conducted energy weapon’s capabilities in relation to the context and environment.[12]

The OHRC is concerned that the subjectivity and risk threshold of the standard for the use of tasers in the revised guidelines (i.e. threatening or assaultive behaviour) may have an adverse impact on persons with mental health disabilities. People with certain mental health disabilities may be more likely to exhibit behaviour that can be perceived as threatening or assaultive by virtue of their condition. This behaviour may also affect their ability to comprehend and respond to a police officer’s requests or instructions.[13]

In the revised guidelines, officers are no longer required to consider whether efforts to de-escalate the situation have been effective and whether verbal commands are not practical or are not being followed.[14] The OHRC is further concerned about the resulting impact that this may have on people with actual or perceived mental health disabilities. De-escalation techniques help minimize the adverse impact of use of CEWs on persons with perceived or actual mental health disabilities.[15]

We recommend that the MCSCS guidelines be reviewed with a human rights lens. They do not appear to make allowances or offer guidance to police officers on using tasers when encountering people who may be displaying symptoms that are consistent with their mental health disability or, by virtue of their condition, may not appear cooperative. This is consistent with Recommendation #29 from the Inquest into the Deaths of Reyal Jardine-Douglas, Sylvia Klibingaitis, and Michael Eligon, which states that MCSCS and the TPS should “study and evaluate the threshold for use of conducted energy weapons (‘CEWs’). This evaluation shall include a public consultation component”[16]. 

We understand that MCSCS is reviewing de-escalation and use of force training in consultation with its community partners, including best practices for police officers interacting with people in crisis.[17] The OHRC recommends that MCSCS also review training on appropriate CEW use through a human rights lens, with a particular focus on how to mitigate the adverse impact of increased CEW use on persons with mental health issues. This review should be done in consultation with consumer/survivor groups and experts in human rights, mental health and addictions.

Police services should also have policies that state when CEWs may be used and also specify inappropriate uses. These policies should specifically address the use of CEWs on vulnerable individuals such as people with mental health issues, and the potential increased risk of death for people with mental health disabilities, addictions or who are intoxicated. Policies should make clear the need for sound justification if a weapon is discharged. Where policies and procedures exist, they should be reviewed with a human rights lens to make sure the criteria they contain do not have an adverse effect on people with perceived or actual mental health disabilities and addictions. Policies should be made available to the public. Police services should also integrate training for all officers who have CEWs. Moreover, there is a need for police to collect and report on use of force and human rights-based data. MCSCS should give appropriate direction to Ontario police services in these areas.

Training, collecting data and reporting are covered in more detail later in this submission.

2) Training

Several previous Coroner’s inquests speak about the need to develop capacity to provide services to persons with mental health issues. The recommendations are targeted towards both front-line police officers, and to other personnel such as communications and dispatch personnel.[18]

In Minds that Matter, the OHRC recommended that:[19]

The Ontario Police College and police services should provide training to new and seasoned police officers on human rights and the duty to accommodate people with mental health issues or addictions. All officers, including new recruits and seasoned officers, should also receive training in crisis response de-escalation techniques used by specialized crisis response teams. (Recommendation #45)

We acknowledge that the TPS has made significant progress in their efforts to train officers on how to provide services to people with actual or perceived mental health disabilities. For example, the TPS provides annual training on the use of CEWs and “interactions with Emotionally Disturbed Persons.”[20] Overall, it appears that the total time dedicated to de-escalation, sensitivity and anti-stigma training in the annual in-service training increased to 150 minutes in 2013. In the 16-hour in-service training program that all front-line officers are required to take each year, more than six hours of training is devoted to some aspect of dealing with “emotionally disturbed persons” or persons with mental health issues.[21]

Although some police officers receive training on human rights and mental health, we recommend that it be integrated into use of force modules and other training programs, where relevant, to complement, reinforce and apply the learning. The OHRC recommends that police services include consumer/survivor groups and experts in human rights and mental health in consultations to develop integrated training.

The OHRC recommends that training on bias and stereotyping be integrated with use of force training. This will strengthen training by providing guidance on how to recognize and deal with bias and stereotyping that may contribute to officer use of force decisions. It may better equip officers to distinguish “real” threats based on objective evidence or criteria from assumptions about dangerousness based on bias and stereotypes.[22]

Profiling based on mental health is similar to racial profiling – both involve longstanding and pervasive stereotypes.[23] An analogy may be drawn to the rationale for officer training ordered by the Human Rights Tribunal of Ontario in Nassiah v. The Regional Municipality of Peel Police Services Board. The Tribunal said: “if officers are not appropriately trained on what may constitute racially biased profiling or investigation, they may consciously or subconsciously engage in this form of discriminatory conduct.”[24]

Integrated training on bias, stereotyping and stigma is supported by a study commissioned by the Mental Health Commission of Canada. The study focuses on police interactions with persons with mental health issues, and suggests that bias and stigma associated with mental health issues are present in police services. The authors recognize that while stigma does not influence the behaviour of all police officers, there is a need to integrate strategies to recognize and address stigma throughout police training.[25]

The OHRC further recommends that all police services review their training programs to make sure that strategies for working with persons with mental health issues are integrated throughout other training programs, where relevant. This includes integrating training on mental health and de-escalation techniques into use of force training and training on the use of CEWs. For example, in dynamic use of force training scenarios, police officers should receive training on how persons with mental health disabilities may behave in ways that seem unusual and may not respond to police officer instructions in a predictable way. This may not justify increasing use of force. Instead, officers should be trained to use de-escalation wherever possible, and the least amount of force necessary in the particular circumstances.

Integrated training is supported by several recommendations from the Inquest into the Deaths of Reyal Jardine-Douglas, Sylvia Klibingaitis, and Michael Eligon. For example, Recommendation #9 provides that the TPS and MCSCS should “maximize emphasis on verbal de-escalation techniques in all aspects of police training at the Ontario Police College, at the annual in-service training program provided at Toronto Police College and at the TPS Divisional Level.”[26] The need to provide integrated, scenario-based training was also highlighted.[27] The OHRC’s Policy on preventing discrimination based on mental health disabilities and addictions also states that, wherever possible, organizations should train their staff on effective and appropriate de-escalation strategies that can be used to defuse situations where a person’s disability-related behaviour may present challenges.[28]

Communication strategies to effectively serve persons with mental health disabilities, including appropriate language, tone and gestures, should also be integrated into scenario-based training. Indeed, using different communication strategies when assisting persons with mental health issues could be considered a form of accommodation for their disabilities and was recommended by the jury in the Inquest into the Deaths of Reyal Jardine-Douglas, Sylvia Klibingaitis, and Michael Eligon.[29]

Certain language, tone and gestures may be perceived as more threatening by persons who are in a mental health crisis and should be avoided, subject to health and safety concerns. The Mental Health Commission of Canada has cited research that suggests that training on de-escalation communication strategies “will reduce the incidence of the use of physical force.”[30]

The OHRC further recommends that training put in context the reactions of individuals who feel they are being discriminated against. In Maynard v. Toronto Police Services Board, the Human Rights Tribunal of Ontario highlighted a section of the OHRC’s Policy and guidelines on racism and racial discrimination (see Appendix C):[31]

Racialized persons who reasonably believe that they are being racially profiled can be expected to find the experience upsetting and might well react in an angry and verbally aggressive manner. A person’s use of abusive language requires reasonable tolerance and tact and cannot form the basis of further differential treatment.

Multiple aspects of one’s identity, like ethnic origin and a mental health disability, could be at play in that person’s reaction to police. Some newcomers may experience negative and fearful reactions to police in uniform, particularly people who come from countries with authoritarian regimes.[32] Police should be taught to be mindful that a person’s experiences may affect their reactions or responses to police commands, and should take this into account when assessing risk.

MCSCS should provide Ontario police services with appropriate direction on officer training in the areas of human rights and mental health, de-escalation, sensitivity, destigmatization and bias in use of force, and officers should receive training on these areas at the same time.

As with any human rights training program, the OHRC recommends that training be reviewed and evaluated appropriately.

3) Developing policies and procedures

The training of officers should be supported by appropriate police service policies and procedures. The availability and suitability of human rights policies and procedures are relevant considerations in assessing the sufficiency of an organization’s efforts to address allegations of discrimination and harassment. The availability and suitability of human rights policies and procedures are also taken into account when determining orders for future compliance with the Code.[33]

The OHRC recommends that Ontario police services develop policies and procedures to make sure that stereotypes about persons with mental health issues do not affect officer decisions on the use of force when they are interacting with a person who has, or who is perceived to have, a mental health disability or an addiction. MCSCS should provide appropriate direction to Ontario police services.

A call to develop policies and procedures on the use of force and bias/stereotyping is consistent with recommendation 47 in Minds that Matter:[34]

Police services should develop police policies and protocols that address human rights and policing issues as they relate to people with mental health disabilities and addictions

4) Data collection and reporting

Two previous Coroner’s inquests have made recommendations on collecting data related to police use of force including CEWs.[35]

The OHRC recommends that data collection about the circumstances related to police use of force be expanded province-wide and include collecting data about use of force in scenarios where the police are interacting with persons who have, or who are perceived to have, mental health issues or addictions. 

Collecting human rights-based data can, among other things:

• help organizations proactively monitor for systemic discrimination and help to remove systemic barriers
• identify opportunities for learning, developing policies and procedures and accountability mechanisms
• help to evaluate initiatives to reduce bias against Code groups in policing.

Data should be collected in a way that is consistent with the human rights principles set out in the OHRC’s guide Count me in! Collecting human rights-based data (see Appendix D).

The TPS already collects data on the use of CEWs and officer perception of whether the subject is an “emotionally disturbed person” and/or whether the person appears to be under the influence of alcohol and/or drugs. The data
is available through an annual report that is presented to the Toronto Police Services Board. The “Toronto Police Service, Annual Report: Use of Conducted Energy Weapons” (2012) indicates that in 2012, there were 255 incidents
of CEW use by the Toronto Police, 32.2% of which involved persons officers believed were “emotionally disturbed.” In total, 43.6% of CEW incidents involved persons the officers believed were “emotionally disturbed” or “emotionally disturbed and under the influence of drugs and or alcohol.”[36]

This data raises human rights concerns because it suggests that CEWs are disproportionately used in interactions with persons who have, or who are perceived to have, mental health issues and/or addictions. The TPS reports note that “to conclude that CEWs are used primarily on persons with a mental disorder would be a mistake because less than 30% of the incidents involved subjects who were deemed suitable for apprehension under the Mental Health Act (MHA).”

However, the criteria for apprehension under the Mental Health Act only apply to a small subset of persons with mental health issues. As well, from a human rights perspective, data collection should focus on the officer’s perception, rather than an actual diagnosis, as officer perception is more relevant in indicating whether or not discrimination may have occurred. The OHRC therefore recommends that the TPS critically examine the circumstances in which CEWs were deployed against “Emotionally Disturbed Persons” to explore whether policies or procedures related to police use of force and CEWs are having an adverse impact on persons who have or who are perceived to have mental health issues or addictions.

Recommendation #48 in Minds that Matter calls for data collection to be expanded:[37]

Police services should collect data to identify any inequities in the treatment of people with perceived or known mental health disabilities or addictions compared to people without mental health disabilities or addictions.

The OHRC recommends all Ontario police services collect data based on officers’ perception, and monitor for any data that may indicate that CEWs and other weapons are drawn and used more often on persons with addictions or mental health disabilities, whether actual or perceived. This is supported by Recommendation #4c from the Inquest into the Deaths of Reyal Jardine-Douglas, Sylvia Klibingaitis, and Michael Eligon, which proposes that MCSCS amend the Use of Force form to enhance collection of data for analysis by including “a section to identify whether the use of force involved a subject whom the officer perceived was suffering from a mental illness and/or in emotional crisis […].”[38]

In addition to the concerns that police are more likely to use CEWs on persons with real or perceived mental health disabilities, there are concerns that police are more likely to use force in their interactions with African Canadians and Aboriginal Peoples. For example, a report published by the Urban Alliance on Race Relations revealed that Black communities in particular felt that they were “disproportionately vulnerable to police violence” and that racialized people are disproportionately likely to be killed by the police.[39]

Although there is limited data available on race and police use of force, some Canadian study findings may be of concern from a human rights perspective. For example, in his study “Hidden intersections: research on race, crime, and criminal justice in Canada,” Dr. Scot Wortley found:

For example, between 1978 and 2000, we were able to identify—through media coverage—34 separate shootings in which Ontario citizens were either killed or severely injured by the police. Nineteen of these cases (56%) involved Black victims, 10 (29%) involved Whites, and 5 (16%) involved people from other racial backgrounds. Additional analysis reveals that 13 of the 23 people (57%) who were shot and killed by the police during this time period were Black. Although overall numbers are low, the fact that Black citizens represent over half of those killed or injured by the police is disturbing —particularly when you consider the fact that they make up only 4 percent of Ontario's total population. It is extremely important to note that any examination of the use of force issue must consider the crucial intersection of race and mental health status.[40]

Dr. Wortley collected information on each Special Investigations Unit (SIU) investigation that was completed between January 1, 2000 and June 6, 2006, analyzed the data, and presented his findings in a study that was conducted on behalf of the African Canadian Legal Clinic for the Ipperwash Inquiry. The SIU is a civilian law enforcement agency that conducts independent investigations into circumstances surrounding serious injury or death to civilians involving police in Ontario. According to Dr. Wortley, the results suggested that both Aboriginal Peoples and African Canadians were “highly over-represented” in SIU investigations. While Aboriginal Peoples made up only 1.7% of the provincial population, they represented 7.1% of all civilians involved in SIU investigations. Similarly, while African Canadians made up only 3.6% of the Ontario population, they represented 12.0% of civilians involved in SIU investigations.[41]

Dr. Wortley also noted that while there was very little data on the use of force and race in Canada, data from the United States revealed that people who are racialized, particularly Black males, were overrepresented in police use of force statistics. There is considerable debate about the reasons for this over-representation.[42]

The OHRC recommends that police services across Ontario collect data on race and mental health (based on officers’ perception in each case) and use of force in a way that is consistent with the human rights principles outlined in Count me In!. Data should also include information about the context of the interaction, outcome and level of force used, so that the data can monitor for potential systemic or adverse effect discrimination in police use of force. The OHRC also recommends that police services use the results of this analysis to make any needed changes to training programs, policies, procedures and accountability mechanisms. The data should be made public in an accessible format. Increased data collection is also consistent with the recommendations set out in the Goudge Report, which calls for “large-scale population-based field studies involving detailed and consistent collection of information on the characteristics of the subjects and the events surrounding CEW use” to address the current gaps in knowledge about how the use of CEWs affects different populations, including people with mental health disabilities.[43]

MCSCS should provide appropriate direction in this area to Ontario police services.

5) Mobile crisis intervention teams

At least three coroner’s inquests have recommended that police expand the use of mobile crisis intervention teams (MCITs) to provide services to persons with mental health issues.[44] The Inquest into the Deaths of Reyal Jardine-Douglas, Sylvia Klibingaitis, and Michael Eligon was no different. The jury made three recommendations with respect to MCITs, including forming a “permanent ongoing advisory committee,” expanding their hours of service and identifying officers who are current or former MCIT members.[45]

Following the death of Michael Eligon, the TPS, in partnership with Toronto East General Hospital, committed to “fast-track” the deployment of an MCIT for east Toronto. The MCIT for east Toronto (54 and 55 Division) was launched on March 7, 2013.[46]

The availability of MCITs has expanded further in the City of Toronto. In May 2014, two police divisions in North York received MCITs. Fourteen of 17 police divisions in Toronto are now covered but they do not operate after 11:00 p.m. The TPS indicates that the MCITs’ hours are based on when they receive the highest volume of calls for service involving persons with mental health issues or who are emotionally distressed. As well, the teams do not attend calls involving individuals who are intoxicated by drugs or alcohol, violent individuals or people with weapons, or experiencing overdoses.[47]

The OHRC recommends that MCITs or officers with similar training and skills be available 24 hours a day, seven days a week, so police can provide equitable and appropriate services to persons with mental health issues. This is particularly important given the links between poverty, lack of affordable housing, homelessness and mental health. For example, studies have shown that persons with mental health issues are overrepresented in the homeless population and are disproportionately likely to experience poverty.[48]

The OHRC further recommends expanding the scope of calls that MCITs may respond to, including cases involving people with “edged weapons,” while ensuring health and safety for the civilians in those units. The scope of calls should also be expanded to include persons who are intoxicated and/or experiencing a drug overdose. People with addictions also have a right to access policing services without discrimination under the Code.

MCSCS should provide appropriate direction to Ontario police services.

6) The use of the term “Emotionally Disturbed Person”

The term “Emotionally Disturbed Person” (EDP) is widely used by police forces, to describe people who may be experiencing the effects of a mental disorder or another type of emotional crisis. 

From a human rights perspective, the terms that are used to describe people are very important. Terms to describe people with mental health issues or addictions can demean people and reflect underlying negative views and stereotypes, or they can promote acceptance, inclusion and human rights. In the context of disability, it is always preferable to refer to the person before the disability.[49]

There is stigma associated with the “EDP” label. For example, the label “emotionally disturbed” has been rejected in educational settings in Maryland because of the stigma associated with it.[50] Organizations such as the Association of University Centers on Disabilities (AUCD) also recommend that the term “emotionally disturbed person” be abandoned and replaced by “people first language” such as “a person who has an emotional disability.”[51] A term that recognizes that behaviours may be situational (e.g. “person in emotional crisis”) may also be preferable.

The OHRC recommends that the term or label “Emotionally Disturbed Person” be abandoned and replaced by one that focuses on behaviour, not on the person, and avoids the use of stigmatizing language such as “disturbed.” The new terminology should be developed in consultation with consumer/survivor groups and other stakeholders. The OHRC further recommends that Ontario police services take steps to ensure that the label “Emotionally Disturbed Person” or any other term selected does not affect the services that persons with mental health issues receive from the police.

7) The provincial use of force model

The Canadian Mental Health Association has noted that the provincial use of force model does not take into account how the symptoms of some mental health disabilities, such as hallucinations or delusions, may make persons who are experiencing a mental health crisis appear uncooperative.[52] This may result in a perception of higher risk to officer and public safety, which may be used to justify increasing use of force. In light of concerns about disproportionate use of force against people with actual or perceived mental health disabilities and the intersection with race, the OHRC recommends that MCSCS review the provincial use of force model.

This would involve using a human rights lens to explore how bias or stereotypes about persons with mental health issues, including racialized and Aboriginal persons with mental health issues, may enter into decision-making processes. The review should also consider the adverse effects of the use of force model on persons with mental health disabilities to make sure the model includes measures, short of undue hardship, to minimize the adverse impact. The review may include integrating an understanding of how certain symptoms of mental disabilities may not in fact indicate a greater risk to officer or public safety. While recognizing the subjective nature of officer use of force decisions, MCSCS may amend the use of force model accordingly. This is consistent with recommendation 47 in Minds that Matter and previous jury recommendations from inquests.[53]

Conclusion

Our society is only beginning to address the challenges of mental health issues and learning how best to respond to them. Front-line police officers, making decisions in a split second, face an enormously difficult task. But the more we
all understand about mental health issues, the better our responses will be.

Many of the recommendations in this submission are not particularly new. Several have been discussed and suggested and, frankly, shelved or not fully implemented before. It is time to move forward. The welfare of police officers – and the people with mental health disabilities they serve – depends on it.