September 28, 2004
The Hon. Patrick J. LeSage, Q.C.
Police Complaints Review
The Wicket, 777 Bay St.
P.O. Box 46119
Toronto, ON M5G 2P6
Dear Mr. LeSage,
I am writing pursuant to my mandate under the Ontario Human Rights Code (the “Code”) to outline potential human rights concerns arising from the Toronto Police Services Board’s (the “Board”) recommendations related to the establishment of a new police complaints system as contained in a report entitled Changes to the Complaints System - Final Recommendations and in an Addendum to the July 20, 2004 Report: Changes to the Complaints System - Final Recommendations.
In February 2003, the Ontario Human Rights Commission (the “Commission”) launched an inquiry into the effects of racial profiling. One of the recurrent themes that arose was the lack of faith in the current police complaints process. Participants said that they were prevented or discouraged from filing complaints. They described a lack of confidence in the current police complaints process and a perception that it lacks independence, often described as “police investigating the police”. Those who had filed complaints found the result unsatisfactory, further compounding their sense of mistrust and injustice.
Consequently, one of the recommendations in the Commission’s Inquiry Report Paying the Price: The Human Cost of Racial Profiling (copy enclosed), released in December 2003, was to change the current police complaints mechanism to one that would be independent, accessible and effective. The Commission is of the view that a strong police complaints mechanism is essential, but that recourse to the Human Rights Commission may be required in some cases of discrimination or harassment. It is the Commission’s view that a new police complaints process must not remove the Commission’s jurisdiction in these situations.
In this regard, the Board’s Recommendation 6 pertaining to “authority to deal with internal discipline, human rights complaints and civil proceedings in a single, comprehensive process” is of some concern from a human rights perspective. While the recommendation does not explicitly state that recourse to the Commission should be removed, this is implicit in the words “single, comprehensive process” and in the discussion that precedes the recommendation.
Although the Commission recognizes the importance of reducing multiple proceedings, the Commission nevertheless states that this can be addressed by retaining the Commission’s jurisdiction to receive human rights complaints involving the police, subject to its discretionary power to refuse to deal with complaints where another Act “could or should more appropriately deal with the issue” in accordance with s. 34 of the Code. The case law has recognized the importance of the retention of concurrent jurisdiction.
Section 34 allows the Commission to consider on a case-by-case basis whether:
- the complainant had meaningful access to another procedure
- the other procedure addresses human rights issues
- the other procedure provides for a similar process to the Commission’s (i.e. investigative powers, power to make a decision or issue an order, a remedy)
- issues of discrimination have been dealt with appropriately
- there is a broader public interest that requires the Commission’s involvement
The matter of human rights issues being raised in more than one forum already arises in many situations, and is routinely dealt with by the Commission, for example:
- Landlord/tenant matters can be taken to the Rental Housing Tribunal
- Claims of discrimination and harassment in unionized workplaces where a grievance may be filed
- Complaints against regulated professionals can be lodged with the regulating body (e.g., the College of Physicians and Surgeons)
- Complaints against the police can be taken through the current police complaints system
We see no reason why any new police complaints system should not be subject to the same processes.
Therefore, we believe that Ontarians should have access to a police complaints procedure that is independent, accessible and effective while also being able to have a complaint dealt with by the Human Rights Commission, in appropriate circumstances. This strikes a proper balance between efficiency and having one’s human rights issues dealt with appropriately. It is also consistent with the compelling reasons why access to the Commission’s process for dealing with human rights matters must not be denied. A discussion of these reasons follows.
Quasi-Constitutional Status of Human Rights
Human rights are given special consideration due to their quasi-constitutional status. The Code has primacy over other Acts or regulations, unless the latter specifically provide that they are to apply despite the Code (s. 47 of the Code). The Commission is aware of very few examples of this: (1) regulations under the Highway Traffic Act prevent the Commission from receiving complaints about age, hearing and vision requirements for driving licenses, and (2) the Ontario Lottery and Gaming Corporation Act’s provisions regulating lottery playing and gaming by minors are deemed to not constitute age discrimination.
Other Ontario laws, however, specifically confirm the application and primacy of the Code including the Police Services Act which stipulates that police services shall be provided having regard to the importance of safeguarding the fundamental rights guaranteed by the Human Rights Code. It would simply be poor optics, if police services, which are responsible for protecting and serving the public, are excluding those who complain against them from accessing a human rights process that is otherwise available to all Ontarians in other circumstances.
In addition, Canada has an international obligation to protect human rights because of its ratification of various international conventions, such as the International Convention on the Elimination of All Forms of Racial Discrimination. Such conventions specifically emphasize the importance of protection against discrimination by State actors, such as the police, and require States to assure, through tribunals or other State institutions, effective protection against, and remedies for, acts of discrimination.
Canada must also respect the international standards set out in the “Paris Principles”, a United Nations document which sets out international standards to ensure the proper functioning of human rights commissions. Of particular relevance to any suggestion that the Commission be prevented from receiving complaints about police matters are the following principles:
- that commissions have as broad a mandate as possible
- that commissions be independent, accessible and accountable
- that commissions have adequate powers, and
- that commissions be composed of a variety of members from diverse backgrounds with a particular interest, expertise or experience in the field of human rights.
These international conventions and the Paris Principles impose standards on Canada as a United Nations member state, and thereby, on the provinces. It is not clear that a police complaints system as the only mechanism to deal with human rights claims against the police, could adequately address these international standards.
The Public Interest
The Commission is entrusted with defending the public interest in its handling of complaints before it. This mandate is also fulfilled through public education, policy development and public consultations.
With regard to individual complaints, the Commission may not offer voluntary mediation of a complaint if it is not seen to be in the public interest to do so and it may not approve a mediated settlement between the parties if public interest remedies are not part of the agreement. In addition, the public interest is also considered when conducting an investigation and deciding whether to refer a complaint to the Human Rights Tribunal of Ontario (the “HRTO”). When a complaint is referred to the HRTO, the Commission has carriage of the complaint and again must act in the public interest in the litigation of the complaint and, where discrimination is found, in proposing a remedy.
If the Commission cannot receive any complaints against the police, this may impair its ability to effectively address public interest issues related to the justice sector. Therefore, continued access to the Commission is essential in protecting the broader public interest.
The Board’s Recommendation 6 suggests that the remedial powers of the new independent review body be limited to the powers of compensation of a Superior Court Judge.
However, the remedial powers of the HRTO extend beyond compensation. In addition to monetary damages, the HRTO can order “anything” that is required to achieve compliance with the Code, both in terms of the complaint and in respect of future practices. This includes ongoing monitoring of practices and requiring respondents to issue apologies, train staff, and develop human rights policies. The Commission may be involved in implementing or monitoring these public interest remedies.
Compensation as the only remedy is insufficient to properly address past and future human rights issues involving police. It would not respect the purpose of the Code, namely to put a complainant in the position she or he would have been in had the Code violation not occurred and to encourage respect for human rights with respect to future practices.
Experience and Expertise in Human Rights
While the Commission does not have a monopoly on the ability to understand and apply the Code, human rights case law and human rights policy, it has significant experience and expertise in dealing with human rights matters.
It is not clear that a body with a primary focus in policing will have the necessary knowledge to address all human rights matters involving the police. The Board’s Recommendation 1 refers to the need for police and non-police representatives but makes no mention of any representation of those with expertise in human rights.
Given the Commission’s role in protecting human rights in Ontario, it only makes sense that it retains jurisdiction to receive human rights complaints against the police. In addition, we would recommend that those involved at every level of any new police complaints mechanism should receive extensive training in human rights.
Standard of Proof
The Commission is also concerned about the Board’s Recommendation 5 that states that the standard of proof used at a disciplinary hearing should be a flexible one that shifts between “clear and convincing evidence” and the “balance of probabilities” depending on the seriousness of the alleged misconduct.
Given that the standard of proof before the HRTO is a “balance of probabilities”, due to the remedial nature of human rights legislation, it is the Commission’s submission that human rights complaints involving the police cannot be subjected to a different, higher standard of proof than other human rights complaints.
Finally, the Commission would like to offer its strong support for the Board’s recommendation (Recommendation 2) that the complaints system also apply to individuals who “exercise quasi-police powers and may appear, to the public, to be police officers”, e.g. those who work for private security firms.
During the Commission’s racial profiling inquiry, a number of participants described experiences involving private security guards, some of which resulted in physical restraint and subsequent involvement of the police. The lack of regulation of private security guards is, therefore, of significant concern to the Commission and recommendations for future action in the Inquiry Report are, where appropriate, aimed at those providing private security guard services.
I hope that this submission is of assistance to you in your consideration of the Board’s recommendations and in your broader review of the police complaints mechanism. I believe that the process you have undertaken is a critical first step in strengthening public confidence and creating a police complaints system that will be independent, accessible and effective. If you have any questions about this submission or the work of the Commission, please do not hesitate to contact me.
In keeping with the Commission’s commitment to public accountability and its duties in serving the people of Ontario, it is our intention to make this submission public on our Web site.
Keith C. Norton, Q.C., B.A., LL.B.
cc: The Honourable Michael Bryant