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Ontario Human Rights Commission Submission to the Toronto Police Services Board re: Draft Policy on Race-Based Data Collection, Analysis and Public Reporting

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September 4, 2019

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Ontario Human Rights Commission

 

Submission to the

 

Toronto Police Services Board re: Draft Policy on Race-Based Data Collection, Analysis and Public Reporting

 

The Ontario Human Rights Commission (OHRC) welcomes the opportunity to provide a submission to the Toronto Police Services Board (TPSB) on its Draft Policy on Race-Based Data Collection, Analysis and Public Reporting (Draft Policy).[1]

Approving this Draft Policy will be a historic step forward. It will signal that the TPSB and Toronto Police Service (TPS) are genuinely committed to identifying, monitoring and addressing racial profiling and racial discrimination. Once fully implemented, the policy will require race-based data collection across the full range of police-civilian interactions and will make the TPSB and TPS a national leader in race-based data collection.

This is a unique moment to build public trust in police and make our communities safer. For over four decades, Black communities in Toronto have expressed concerns about anti-Black racism in policing. These concerns were reflected in A Collective Impact, the OHRC’s interim report on its inquiry into racial profiling and racial discrimination of Black persons by the TPS.[2] Decades of reports and recommendations including A Collective Impact have also pointed to race-based data collection as the foundation for combating racial discrimination in law enforcement.

In response to A Collective Impact[3], the TPSB passed a unanimous motion on December 18, 2018 stating its commitment to “using the collection of race-based data to promote evidence-based policy-making and organizational change, including in monitoring systemic racial and other disparities to identify gaps, eliminate barriers and advance the fair treatment of every person.”[4] The TPSB referred its demographic data collection policy to the TPSB’s Anti-Racism Advisory Panel (ARAP) to be reviewed with recommendations for amendments. The TPSB further requested that the OHRC deliver a presentation to ARAP about best practices for collecting race-based data. The OHRC did so on February 14, 2019 and recommended that race-based data be collected on stops, searches, charges, arrests and use of force incidents.

The Draft Policy signifies progress. It is a significant step forward in the TPSB’s efforts to identify and address systemic discrimination. There are many elements of the Draft Policy that the OHRC supports and that are essential, including:

  • The guiding principles and purpose, which reflect the values underlying the Human Rights Code – preserving the dignity of individuals and communities, enhancing accountability, delivering non-discriminatory services to the public, and identifying and publicly reporting on disparities in service
  • Collecting race-based data based on officer perception
  • Collecting race-based data on all stops, searches, Use of Force Reports, apprehensions, charges and arrests
  • Regularly consulting and engaging with members of affected communities with lived experience of racial discrimination
  • Internal and independent analysis of data
  • Annual public reporting
  • The requirement to develop action plans to “remove systemic barriers and advance racial equity”
  • Independent recommendations to improve action plans
  • Experiential and scenario-based training to all members of the TPS on “the approach to policing required by Ontario’s Human Rights Code” and how to avoid bias, discrimination and racism.

 

Recommendations

The OHRC also makes the following recommendations to ensure that the Draft Policy is consistent with best practices and achieves the TPSB’s vision of an approach that is “best in class.”[5] These recommendations are discussed further below.

The OHRC recommends that the TPSB:

  1. Remove “another race category” from the racial categories.
  2. Require race-based data collection when a civilian sustains a physical injury as a result of force being used, regardless of the extent of any such injury or medical treatment received.
  3. Mandate the analysis of relevant contextual information from police-civilian interactions that involve use of force, consistent with best practices.
  4. Require that all phases be implemented by January 1, 2021.
  5. Require that action plans and key performance indicators developed by the Chief of Police be used to assess whether the TPS is effectively meeting the goal of eliminating racial profiling and racial discrimination.
  6. Require that action plans include using race-based data to identify problematic officer conduct and take remedial or other action as necessary.

 

1) Racial categories

The OHRC is pleased that the Draft Policy requires race-based data collection based on officer perception. Perceptions of race are the most useful for identifying, monitoring and addressing racial profiling and racial discrimination.[6]

The Draft Policy lists racial categories and states that they are the categories listed in Ontario’s Anti-Racism Data Standards. The OHRC recommends that the category “another race category” be removed.

Ontario’s Anti-Racism Data Standards draw a distinction between racial categories for “participant observer information of race” (i.e. perceived race) and self-identification. “Another race category” is not available as a response for “participant observer information” because of “lessons learned from other jurisdictions and research that shows including that option compromises the validity of responses.”[7]

The OHRC also put forward racial categories in its submission to the Independent Street Checks Review, which were endorsed by the Ontario Association of Chiefs of Police and the Ontario Association of Police Services Boards and did not include “another race category” or “other.”[8]

 

2) Scope and application

The OHRC is pleased with the commitment to a broad scope of race-based data collection described in the Draft Policy. It means that the potential for racial bias at various stages of police interactions (stops, charges, arrests and use of force) will be assessed and the TPSB and TPS can better identify “institutional or structural practices that can result in discrimination.”[9]

 

a) Use of force incidents

With respect to use of force, the Draft Policy currently only directs the TPS to collect race-based data “as it relates to all Use of Force Reports.”[10] This means that the TPS will not be collecting race-based data on all use of force incidents. For example, no data would be collected on incidents where the use of force resulted in a physical injury that did not require medical attention.[11]

Lower-level use of force incidents that result in physical injuries must fall within the scope of the policy. The OHRC is concerned that there may be racial disparities in these lower-level use of force incidents. The case law and lived experiences set out in A Collective Impact identified use of force incidents involving Black people that may not have required medical attention. Furthermore, 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.[12]

Many Indigenous and racialized communities support human rights-based data collection on all use of force incidents. Twenty-two community and advocacy groups endorsed the OHRC’s recommendations in its submission to the provincial government on its review of policing, which included the recommendation that police services be required to establish permanent data collection and retention systems to record human rights-based data on all use of force incidents.[13]

Guidance on which lower-level use of force incidents should fall within the scope of the policy appears in TPS Procedure 15-02: Injury/Illness Reporting.

The OHRC recommends that the policy require race-based data collection when a civilian “sustains a [physical] injury as a result of force being used, regardless of the extent of any such injury or medical treatment received.” An officer is already required to submit an Injury/Illness Report (TPS 105) to the Officer in Charge in these circumstances.[14]

 

b) Contextual information about use of force incidents

The OHRC is pleased that the Draft Policy requires independent analysis of data and independent recommendations to improve action plans. However, the policy needs to clearly identify the relevant contextual information related to police-civilian interactions that should be analyzed by the independent organization.

The Draft Policy requires the Chief of Police to enter into a partnership with an independent organization that will, among other things, conduct its own analysis of race-based data and report to the TPSB with its findings and recommendations to improve action plans. The Chief of Police is required to provide the independent organization with any relevant contextual information the independent organization determines is necessary, such as “demographic and census information (race, Indigenous ancestry, age, and gender of the individual), deployment information, detailed information about where the interaction occurred, etc. that assists with an analysis of the data.”[15]

The OHRC recommends that the policy specify contextual information to be analyzed from police-civilian interactions that involve use of force, to help the TPSB and TPS identify whether there is racial discrimination and intersectional discrimination. As the Center for Policing Equity noted, “a thorough understanding of police use of force is not possible without a thorough account of the interaction that produced it.”[16] Also, there is a socially significant intersection between race and mental health that may affect officer decisions about use of force.[17]

Best practices support analyzing a variety of information, including the reason for initial contact between the subject and the officer, the subject’s actions that led to the use of force, the level of force used, the subject’s gender, whether the subject had or was perceived to have a mental health disability, charges and their disposition.[18] The policy should specify that the analysis should consider the following information. This will inform whether the information should be collected or compiled from existing sources. All of the following contextual information should apply to the first phase of the policy (i.e. Use of Force Reports) and use of force incidents that result in physical injuries:

  1. The subject’s race, Indigenous ancestry, age and gender
  2. Whether the subject had or was perceived to have a mental health disability, was experiencing a mental health crisis or was intoxicated on drugs or alcohol at the time of incident
  3. All type(s) and levels of force used and their sequence
  4. Name, gender, rank, badge number, years of experience, shift, assignment, platoon, unit and division of the officer(s) who used force
  5. Location where the use of force occurred, including postal code, patrol zone and X-Y coordinates
  6. Location where the subject lived, including postal code and patrol zone
  7. Any injuries sustained by the officer and/or the subject and medical services received
  8. A detailed description of the circumstances and the subject’s actions that led to the use of force including:
    1. The reason for the initial stop or enforcement action
    2. Whether the incident occurred during an officer-initiated contact or a call for service
    3. Whether the subject was in possession of a weapon, the type of weapon and when the weapon emerged (i.e. before use of force or after arrest)
    4. Whether the subject was handcuffed or otherwise restrained during the use
      of force
  9. Whether the subject was charged with an offence, and, if so, which offence(s) and their disposition
  10. Whether, when and how verbal or other de-escalation techniques were used
  11. For firearm-related incidents, the number of shots fired by each involved officer, the accuracy of the shots
  12. The length of time between the use of force and the completion of each step of the force investigation and review.

Any additional contextual information to be analyzed may be determined by the independent organization.

 

3) Timelines for implementation

At present, data collection on the first phase (Use of Force Reports) is scheduled to begin by January 1, 2020, which is when the regulation of the Anti-Racism Act, 2017 requires officers across Ontario to record “the race of individuals in respect of whom a use of force report is prepared.”[19] The Draft Policy also states that it will apply across the TPS “with the implementation of all remaining phases being complete by no later than the date on which” the regulation comes into force.[20] Technically, the regulation is already in force, which means all remaining phases must be implemented as soon as the TPSB approves the Draft Policy.

The OHRC recommends that all phases be implemented by January 1, 2021, one year after the first phase is implemented. The TPSB and TPS are well-positioned to learn from the experience of the Ottawa Police Service and Ottawa Police Services Board in their Traffic Stop Data Collection Project, which included quality assurance measures, software upgrades, officer and supervisor training, community engagement, internal and external communications, data monitoring and extraction, and data storage and security.[21]

 

4) Accountability

At a high level, the OHRC recommends that action plans and key performance indicators be used to assess whether the TPS is effectively meeting the goal of eliminating racial profiling and racial discrimination. Key performance indicators should be developed to assess whether there are racial disparities and disproportionalities in the data collected. If racial disparities or disproportionalities are identified, action plans should be developed to eliminate them where possible.

At an individual officer level, the OHRC recommends that action plans include using race-based data to identify problematic officer conduct and taking remedial or other action as necessary. Biased activities will occur less often if there is an understanding that supervisors will review officer conduct and there are consequences if officers engage in racial profiling or racial discrimination – in short, where officers are held accountable for discriminatory conduct.[22]

 

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[1] Toronto Police Services Board, Race-based Data Collection, Analysis and Public Reporting (2019), online: Toronto Police Services Board http://tpsb.ca/images/pdf/Draft-RBDC-Policy-for-ARAP-for-CONSULTATION.pdf [Draft Policy].

[2] Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (2018), online: www.ohrc.on.ca/en/public-interest-inquiry-racial-profiling-and-discrimination-toronto-police-service/collective-impact-interim-report-inquiry-racial-profiling-and-racial-discrimination-black.

[5] Draft Policy, supra note 1 at 2.

[6] Ontario Human Rights Commission, OHRC Submission to the Independent Street Checks Review (2018), online: Ontario Human Rights Commission www.ohrc.on.ca/en/ohrc-submission-independent-street-checks-review; Rob Tillyer, Robin Angel & Jennifer Cherkauskas, “Best practices in vehicle stop data collection and analysis” (2009) 33:1 PIJPSM 69 at 76.

[7] O Reg 267/18; Ontario, Data Standards for the Identification and Monitoring of Systemic Racism (2019), online: Ontario www.ontario.ca/document/data-standards-identification-and-monitoring-systemic-racism [Ontario’s Anti-Racism Data Standards].

[8] OHRC Submission to the Independent Street Checks Review, supra note 6.

[9] Draft Policy, supra note 1 at 1.

[10] Ibid at 7.

[11] RRO 1990, Reg 926, s 14.5(1).

[12] Center for Policing Equity, The Science of Justice: Race, Arrests and Police Use of Force (2016) at 19-21, online: Center for Policing Equity https://policingequity.org/images/pdfs-doc/CPE_SoJ_Race-Arrests-UoF_2016-07-08-1130.pdf [Center for Policing Equity]

[13] Ontario Human Rights Commission, Submission of the OHRC to the Ministry of Community Safety and Correctional Services on the Strategy for a Safer Ontario (2016), online: Ontario Human Rights Commissionwww.ohrc.on.ca/en/strategy-safer-ontario-%E2%80%93-ohrc-submission-mcscs

[Strategy for a Safer Ontario Submission].

[14] Toronto Police Service, Procedure 15-02: Injury/Illness Reporting (December 19, 2016).

[15] Draft Policy, supra note 1 at 5.

[16] Center for Policing Equity, supra note 12 at 7.

[17] Strategy for a Safer Ontario Submission, supra note 13.

[18] Scot Wortley, “Police use of Force in Ontario: An Examination of Data from the Special Investigations Unit, Final Report” (2006), Research project conducted on behalf of the African Canadian Legal Clinic for submission to the Ipperwash Inquiry at 79-80 and Appendix B; www.attorneygeneral.jus.gov.on.ca/inquiries/
ipperwash/policy_part/projects/pdf/AfricanCanadianClinicIpperwashProject_SIUStudybyScotWortley.pdf
; Investigation of the Ferguson Police Department (March 4, 2015) at 92, online: U.S. Department of Justice Civil Rights Division www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf [Investigation of the FPD]; Consent Decree between the United States (i.e. the DOJ) and the City of Ferguson (April, 2016) at 102, 103, 108–115 [FPD Consent Decree]; Consent Decree between the United States (i.e. the DOJ), the Mayor and City Council of Baltimore and the Police Department of Baltimore City (January, 2017) at 73‒74 [BPD Consent Decree]; U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, National Use-of-Force Data Collection Flyer (2018), online: Federal Bureau of Investigation https://ucr.fbi.gov/national-use-of-force-data-collection-flyer.

[19] O Reg 267/18, s 2.

[20] Draft Policy, supra note 1 at 7.

[22] Nassiah v Peel (Regional Municipality) Services Board, 2007 HRTO 14 (CanLII) at para 207.

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