OHRC submission to the Ministry of the Solicitor General on the Equipment and Use of Force Regulation Amendment and implementation of modernized Use of Force Report

October 30, 2022

 

A. Overview

The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide this submission on the proposed amendments[1] and the modernized Use of Force Report (UOF Report).

The Ministry’s proposed amendments to the Equipment and Use of Force Regulation (Regulation) seek to bring reporting requirements in line with current leading practices, facilitate analysis of the data and public reporting, and clarify areas that have been subject to differing interpretation.[2] The proposed amendments to the UOF Report are also intended to reflect current practices, capture more contextual information from use of force incidents and “address deficiencies in the current data to enable the Ministry's analysis and public reporting on race and use of force to assist in identifying and addressing systemic racism pursuant to the Anti-Racism Act, 2017.”[3]

The OHRC’s submission will address these proposed changes and offer recommendations to improve police services’ ability to monitor and analyze data from the UOF Reports in accordance with the objectives of the Anti-Racism Act, and the Human Rights Code (Code).

Our submission outlines recommendations in the following areas:

• Reporting requirements should be guided by a comprehensive definition of use of force
• Expanding the scope of incidents subject to use of force reporting to include lower-level use of force
• Expanding the use of force reporting to include the level of force applied by officers
• Expanding the scope of incidents subject to use of force reporting to include the use of handcuffs (mechanical restraints)
• Including additional contextual information about use of force incidents in accordance with leading practices
• Providing guidance on the analysis required by section 14.7 (4) of the amended Regulation in accordance with human rights principles

 

B. The Ontario Human Rights Commission

The OHRC is a statutory human rights body established under the 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 almost 20 years. The OHRC has created resources to help police services identify, monitor and reduce discrimination, including guides to collecting human rights-based data and creating organizational change; 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 (Racial Profiling Policy).[4] The OHRC has also made submissions to the government and independent reviewers about how to address systemic discrimination in policing.[5]

The OHRC has also advocated for provincewide changes to use of force reporting practices. Our Framework for change to address systemic racism in policing (Framework) recommends that all Ontario police services be required to collect race-based data across the full spectrum of policing interactions with civilians. In addition, the OHRC recently hosted a roundtable attended by members of municipal police forces, academics and community members, where participants engaged in a solutions-oriented dialogue on police use of force, among other issues facing Black communities and their relationship with police. The roundtable was part of the OHRC’s ongoing inquiry into anti-Black racism by the Toronto Police Service (Inquiry).

The OHRC’s work on the Inquiry also includes efforts to address racial discrimination in police use of force practices. A Disparate Impact (2020),[6] the second interim report from the Inquiry, included two expert reports from criminologist Dr. Scot Wortley, who analyzed quantitative TPS data ranging from 2013 to 2017. Using information from use of force reports, injury reports and general occurrence reports, along with relevant data from the SIU, the report found that Black persons were more likely than others to be struck, shot or killed by Toronto police. For example, Black people made up 8.8% of Toronto’s population but were involved in approximately almost four in 10 (39%) cases involving lower-level use of force (where force did not rise to the SIU threshold). Further, systemic racism was confirmed and acknowledged by the TPS when it released its analysis of race-based data on use of force reports in June of 2022.[7]

A Collective Impact,[8] the OHRC’s first interim report, and A Disparate Impact[9] touched on the intersection between race and mental health in use of force. The data showed clear intersections between race and mental health in TPS use of force.

The OHRC’s efforts to advocate for robust data collection and reporting are reflected in its Racial Profiling Policy. The policy states that appropriate data collection by law enforcement is necessary to effectively monitor racial profiling, and to identify and remove systemic biases.[10] With respect to data analysis, the Racial Profiling Policy notes that the data cannot be interpreted without relevant contextual factors. Where the data discloses a discrimination problem, law enforcement organizations have a positive obligation to act to reduce discrimination.[11] Also, the policy recommends thorough reviews of use of force incidents by supervisors immediately after incidents, to determine if there were credible non-discriminatory explanations for the use of force.[12] These objectives can only be achieved if use of force reports collect a broad range of information that can support a meaningful, disaggregated analysis.

The OHRC’s engagement with police use of force practices also includes its work on the Human Rights Project with Peel Regional Police (PRP) and the Peel Police Services Board. This collaborative undertaking will include binding commitments to address disparities and discrimination in areas such as use of force practices and reporting.

Indeed, PRP’s 2021 Use of Force Report found that Black persons represented 35% of the use of force reports where officers perceived a person’s race, yet this group makes up only 9.9% of Peel’s population.[13] As such, this work is timely and necessary.

The OHRC welcomes several of the proposed amendments and offers recommendations for change in the following sections of this submission. The proposed amendments and OHRC’s recommendations can help build trust with communities that have been disproportionately impacted by use of force practices, including Black communities, Indigenous communities[14] and people with mental health disabilities.

 

C. Welcomed changes

The amended Regulation and UOF Report signify progress. They are an important step forward in the Ministry’s efforts to identify and address systemic discrimination in police use of force. There are many elements of the amended Regulation and the UOF Report that the OHRC supports which are crucial to the process of identifying systemic barriers, including:

• Adding report completion requirements to section 14 of the amended Regulation that require chiefs of police to review their procedures on use of force and training courses annually
• Requiring police chiefs to submit an annual report to their police services board
• Acknowledging that use of force options such as the use of a horse or dog can prompt reporting requirements
• Requiring police services boards or the Solicitor General to publish their annual report online.

The OHRC also welcomes changes to the UOF Report form that allow it to capture important contextual information about use of force incidents, including:

• Demographic details about the officer who submitted the report, such as their age, race and gender identity.
• Factors that informed the reporting officer’s perception of the subject’s race
• Factors that influenced the officer’s response (e.g., CPIC information, previous use of force by any officer)
• The subject’s perceived age and gender identity
• Whether the subject was perceived to be experiencing a mental health crisis or was under the influence of alcohol or drugs
• The expanded number of visibility/environmental factors (e.g. environmental factors such as wind and ice have been added to the UOF Report form)

• De-escalation options used by the officer
• The level of physical control used (e.g., joint locks, intermediate weapon used)
• Whether the subject was arrested or apprehended
• Whether the officer used force after the subject was handcuffed
• Whether the subject was charged with an offence
• The subject’s injuries and whether any injuries were sustained by a third party.

These amendments respond to some of the data collection and reporting issues identified in the OHRC’s second interim report A Disparate Impact. This data will also help police services boards and oversight bodies advance their efforts to monitor use of force practices and identify disparities.

 

D. Recommendations

The OHRC recommends additional steps the Ministry should take to ensure that amendments to its Regulation and the UOF Report result in effective and meaningful change. These recommendations are based on the OHRC’s extensive experience advocating for robust data collection and reporting practices that meet obligations under the Code. 

 

1. Reporting requirements should be guided by a comprehensive definition of use of force

The present and proposed definitions of “use of force” that warrant reporting under the Regulation are too narrow, elevated, and do not accord with: (1) criminal law; (2) police practices; or (3) public perception of what constitutes force by the police.

Under the Criminal Code, assault is force. Assault is intentional touching that is not de minimus unless it is part of a lawful arrest or interaction. Without charges and litigation, and often, even with it, a court will not determine the lawfulness of arrest. However, the absence of such a determination does not mean that the arrest or interaction was lawful. To exclude non-injury and non-hospitalisation force, potentially would exclude a large segment of possibly, significant statistical data. Additional contextual facts are needed to assess whether such broader circumstances reveal objectionable use of force. Accordingly, if a broader definition is applied, use of force reports should include other facts concerning the lawfulness of the arrest or interaction, including whether the detention or arrest came about after there were subjective and objective reasonable grounds to suspect (investigative detention) or reasonable and probable grounds (full detention or arrest) and if so, based on what facts.

Separate and apart from the law of assault and grounds to detain or arrest, police practices must be considered in their totality. The police routinely arrest and charge common assault without injury, let alone hospitalisation. Nonetheless these interactions may involve an application of force that should be monitored. To draw the line at injury is inconsistent with police practices.

In addition, public perception requires consideration of the coercive aspect of all confrontations with the police where force is applied. As the courts have recognized for years, police demands usually involve an element of psychological coercion that is relevant in assessing whether there is detention.[15] This coercive element of interaction with the police warrants a broader approach to use of force reporting, monitoring and analysis.

 

2. Expanding the scope of incidents that are subject to use of force reporting to include lower-level use of force

To effectively monitor use of force disparities, use of force reports should capture lower-level use of force by police officers. As it stands, section 14.5 of Regulation requires members of a police service to complete a use of force report whenever a member “uses force on another person, including through the use of a horse or a dog, that results in an injury [emphasis added] requiring the services of a physician, nurse or paramedic and the member is aware that the injury required such services before the member goes off-duty.”[16] While language in this section has been revised, it is does not significantly deviate from the language used in the current regulation. The current version of Section 14.5 mandates the submission of a UOF Report when a service member “uses physical force on another person that results in an injury requiring medical attention.”[17] By stepping beyond the ambit of this provision, the OHRC was able to make important findings on the disproportionate application of lower-level use of force on Black people by TPS.[18]

The expert analysis in A Disparate Impact was guided by a robust definition of use of force that captured instances where officers used a lower-level use of force. The report describes lower-level use of force as incidents where physical force was used by TPS officers – but did not result in serious civilian injury or death. Using this definition helped the OHRC find that Black people were significantly over-represented in use of force cases involving the TPS.[19]

The OHRC’s supports an amendment to section 14.5 that will capture all instances where weapons or physical force is used, including coercive touches[20] such as wrist or arm locks, striking the subject with the hands or feet that may not result in injury. Use of force that falls within the scope of this definition should be reported and considered by chiefs of police when they submit an annual report to their police services board or the Solicitor General pursuant to section 14.7(4) of the amended Regulation.

Neck restraints such as chokeholds and carotid control techniques[21] should also be reported regardless of the level of injury suffered by the civilian. Police services across Ontario have placed restrictions on the use of these holds. However, their application continues to draw scrutiny.[22] The disparate application of these techniques on racialized persons or persons in crisis emerged as a pressing concern following the death of George Floyd in 2020.[23] In response to these concerns, the use of these techniques should by tracked on UOF reports.

Currently, the draft Regulation ties reporting requirements to the presence of a physical injury requiring the services of a physician, nurse or paramedic. Circumstances where TPS members use measurable force are not reportable if they do not result in a physical injury or if they do not result in a physical injury that requires the services of a physician, nurse or paramedic. This method results in an under-reporting of relevant use of force incidents and will undermine efforts to address concerns in this area. It is important to regulate, monitor and ultimately report on lower-level use of force incidents because they warrant oversight. This position is supported by the findings from the OHRC’s Inquiry and research on this issue from the United States. For example, “the Center for Policing Equity found racial disparities in lower-level use of force incidents across the 12 U.S. police departments analyzed in its report The Science of Justice: Race, Arrests and Police Use of Force.”[24]

In response to this issue, the OHRC’s Framework recommends that the Province “…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.”[25] Police services that take up the call to monitor this issue should not have to engage in the practice of creating[26] a lower-level use of force database, as all relevant information can be captured on the UOF report.

The focus on physical injury may also undermine efforts to address the psychological impact of being grounded or restrained by police when there is no resulting injury.

 

3. Expanding the use of force reporting to include the level of force applied

One factor that is important in assessing use of force is whether the amount of force applied was proportionate. While the OHRC recommends a broader definition of use of force, there is value in recording statistics regarding the level of force applied so that proportionality can be assessed. Accordingly, the OHRC recommends that the following levels of force be identified in use of force reports:

• Force (non-intentional, non de minimis touching)
• Force constituting bodily harm
• Lethal force.

There should be a corresponding gathering of contextual data explaining why a lower level of force or less dangerous methods or weapons were not used. Statistics already show a disproportionate level of application of higher levels of force against Black, South Asian, East/Southeast Asian people[27] and persons with Mental health issues[28]. The need to explain why lesser levels of force were not used will not only facilitate statistical understanding but may deter the application of higher levels of force.

 

4. Expanding the scope of incidents subject to use of force reporting to include the use of handcuffs (mechanical restraints), physical restraints or zip ties

The use of restraints such as handcuffs, physical restraints or zip ties should be considered a reportable use of force in the amended Regulation. There have been several incidents where officers have used restraints on members of Black and Indigenous communities that have attracted criticism from human rights tribunals, police disciplinary panels and members of the public. These incidents have sparked important policy shifts that are in line with the OHRC’s recommendation to expand reporting requirements.

For example, in 2020, the Human Rights Tribunal of Ontario (HRTO) found that officers violated section 1 of the Code when they handcuffed and shackled a Black six-year-old girl at her elementary school.[29] When reaching the conclusion that the child was subject to adverse treatment by the two male officers who restrained her, the HRTO stated, “The handcuffing of an individual by police epitomizes a use of force that is a potent symbol of the authority of the state. Quite simply, the use of handcuffs by police restricts the individual’s freedom and therefore amounts to adverse treatment.”[30] In response to this case and other concerns about systemic racial discrimination, PRP has entered the Human Rights Project with the OHRC and is developing a strategy to appropriately address use of force incidents involving youth.[31]

After conducting an extensive review,[32] the Vancouver Police Board developed an interim Use of Handcuffs policy[33] in response to an incident where officers unjustly handcuffed an Indigenous man and his grandchild. The Vancouver Police Department (VPD) received a call from a Bank of Montreal employee who suspected that an Indigenous man, Maxwell Johnson, and his 12-year-old granddaughter were trying to use fraudulent documents at the branch. Mr. Johnson and his granddaughter were handcuffed after two VPD officers arrived at the scene.[34] It was later determined that they were not involved in any criminal wrongdoing. Misconduct complaints were filed against the officers who attended the scene. In his written decision in the disciplinary proceeding, retired Judge Brian Neal, Q.C. concluded that the officers acted “Recklessly using unnecessary force on Mr. Johnson and his granddaughter by applying handcuffs to the parties on arrest without good and sufficient cause.”[35]

In May 2021, The Honourable Selwyn Romilly, an 81-year-old, former judge of the B.C. Supreme Court, was handcuffed when officers mistakenly thought he was a “dark skinned man” approximately 40 to 50 years old, who was kicking people along the seawall in Vancouver. Romilly was released from the handcuffs after he advised the officer that he was a judge. Vancouver police publicly apologized for the incident. Romilly did not file a complaint but spoke about the indignity he suffered during the incident: “"I have no gun; I don't have anything in my hand or my person. And here you have – at 9:45 a.m., near to Third Beach where you have lots of people – you have a Black guy...shackled in handcuffs and people passing by. I found that most embarrassing."[36]

The trauma that can be associated with police use of force should not be understated. In the JKB decision on remedy, the HRTO accepted evidence about the cascading impact of a use of force incident on the young child. In that case, the young applicant was “teased that she got arrested by children at a Boys and Girls club,” told her mother JB, that she “wished JB was white, as that would have prevented the incident from happening,” and expressed fear of being stopped by police.^[37] The weight of the use of force interaction on the applicant in JKB, the Honourable Justice Romilly, Mr. Johnson and his granddaughter is no less objectionable because they did not suffer a physical injury that required medical attention.

These incidents and the findings that accompany them are consistent with ongoing concerns about systemic barriers and racial profiling by police services. In response to this trend, use of mechanical restraints including handcuffs should be tracked by use of force reports along with relevant contextual data.[38] The amended UOF report tracks whether an officer used force after the subject was “handcuffed or otherwise mechanically restrained,” but it should also compel officers to complete a use of force report when mechanical restraints are applied.

 

5. Including additional contextual information about use of force incidents according to leading practices

Additional contextual information should be collected through UOF reports in accordance with leading practices,[39] subject to whether such information can be linked to UOF reports based on the “incident/occurrence number.”[40]

UOF reports should gather information on whether the subject had or was perceived to have a mental health disability, in addition to whether the person was perceived to be experiencing a mental health crisis or was experiencing issues related to substance abuse. For example, A Disparate Impact found that Black people made up 8.8% of Toronto’s population but 29.6% of lower-level use of force cases that involved people who had a noted history of mental health issues [5].

The amended UOF report documents whether the subject was charged with an offence and whether the interaction stemmed from a “reactive response” or “proactive interaction.” Consistent with leading practices, UOF reports should also document which offence(s) the subject was charged with and provide more information about the reason for the interaction (e.g., traffic stop, observed criminal activity, routine patrol), and whether there were subjective and objective grounds for detention or arrest, if any.

De-escalation is understood as the use of certain communication strategies, body language, posture and other techniques to reduce or diffuse the level of intensity of an interaction with the civilian who is in a heightened state. De-escalation is an important tool to resolve conflict without resorting to use of force, accommodate people with mental health disabilities, and help curb racial disparities in use of force. Accordingly, UOF reports should also document when verbal or other de-escalation techniques were used during the interaction, in addition to whether and how they were used.

 

6. Providing guidance on the analysis required by section 14.7 (4) of the amended Regulation in accordance with Human Rights principles

According to Section 14.7(4) of the amended Regulation, police chiefs are required to submit an annual report to their police services board which analyses data from use of force reports and identifies any trends. The OHRC recommends that the analysis and identification of trends should be conducted in a way that is consistent with the objectives of the Code, and the Data Standards for the Identification and Monitoring of Systemic Racism.[41]

Including without limitation of the trends that may be identified, police chiefs should be guided to monitor and identify any Code-related disparities in use of force reports. In other words, the extent to which Code-protected groups[42] are over-represented in use of force incidents or the severity of the force applied should be monitored. Appropriate thresholds should be established to interpret whether differences exist that require further analysis.[43] This includes any benchmarking techniques that should be applied[44].

The trends identified should use an intersectional analysis in a way that is consistent with recommendations from the OHRC’s Racial Profiling Policy. The policy recognizes that stereotypes that relate to intersecting identities can have a unique undesirable impact on members of Code-protected groups. For example, the socially significant intersection between race and mental health may affect officer decisions about use of force.

People with mental health disabilities may be more likely to be subject to officer use of force because of behaviours and responses to police instructions that may seem unusual, unpredictable or inappropriate, or due to police reliance on stereotypical assumptions about dangerousness or violence.[45] Stereotypes about Black persons’ violence and criminality[46] have continually raised concerns that police are more likely to use force in their interactions with Black people.

An analysis of police use of force outcomes must employ an intersectional analysis that will shed light on the experiences of persons whose identities are shaped by multiple Code-protected grounds. This will assist police services and oversight agencies with the task of developing monitoring, training and accountability measures that respond to the unique concerns faced by these groups.

Also, the collection, analysis and release of trends related to Code-protected groups should be conducted in a way that avoids stigmatizing these groups. To this end, consultation with the groups disproportionately impacted by use of force trends is an essential exercise.[47]

 

E. Conclusion

The proposed amendments and OHRC’s recommendations will help ensure that there is robust human rights-based data collection, analysis and reporting on use of force across the province to identify, monitor and address discrimination.

The OHRC welcomes many of the proposed changes and looks forward to engaging with the Ministry about its recommendations. We understand that data collection, analysis and reporting are only one component of the systemic change required
to address discrimination in the use of force. The OHRC agrees with the Ontario Ombudsperson[48] and the recommendation of the jury from the inquest into the death of Andrew Loku[49] that Ontario should institute a new use of force model that emphasizes de-escalation, that should operate in harmony with the proposed amendments to the UOF Form and Regulation.