The OHRC has made many recommendations over several years to address racial profiling. These are documented in our submissions to government ministries, police services and others, and in our 2003 inquiry report, Paying the price. Many of these recommendations are specific to policing, but others pertain more broadly to all organizations or institutions that may have a problem with racial profiling. The OHRC will continue to focus on the criminal justice system as part of our strategic priorities, including working towards ending racial profiling in policing. We will also focus on sectors where issues of racial profiling require more attention. The following list of recommendations reflects our approach to dealing with this form of discrimination within respective organizations.
OHRC Submission to the Independent Review of Police Oversight Bodies (15 November 2016)
In October 2016, the Government of Ontario ordered an independent review of three police oversight bodies: the Office of the Independent Police Review Director (OIPRD), the Special Investigations Unit (SIU) and Ontario Civilian Police Commission (OCPC). The OHRC provided recommendations to the Independent Review of Police Oversight Bodies regarding effective monitoring and accountability for systemic discrimination in policing.
Recommendations to the Government of Ontario:
- Establish, through legislation, an independent institution to undertake proactive, independent and transparent monitoring and enforcement regarding systemic discrimination in policing. The institution should have, among other things:
- A clearly defined and specific mandate to prevent systemic discrimination in policing
- Expertise in discrimination analysis under the Human Rights Code and Charter of Rights and Freedoms
- Understanding of the complex relationships between police and people with mental health disabilities, African Canadians, and Indigenous peoples (including an understanding of the ongoing impact of colonialism)
- Independence from government, police and other oversight bodies, both in terms of institutional independence and possible apprehension of bias
- Accountability, transparency and accessibility to the public, which includes proactively engaging with Code-protected communities to identify issues of concern and possible solutions, and public reporting
- The ability to access and compel production of documents and records, and conduct investigations to uncover patterns of behaviour that may be consistent with systemic discrimination
- Enforcement powers before a court or specialized tribunal that can order systemic remedies
- Sufficient capacity and resources to fulfil its mandate on an ongoing basis.
- Direct police services to establish permanent data collection and retention systems to record human rights identity-based data on, but not limited to, all stops of civilians, use of force incidents, and interactions where officers ask about immigration status or conduct immigration status checks. The data should be standardized, disaggregated, tabulated, publicly reported by each police service, and provided to the institution. The data should include age, gender, perceived race, and officer perception of whether the individual has a disability, including a mental health disability.
- Require other institutions that exercise police oversight functions to:
- Notify complainants or next of kin of their right to file an application with the Human Rights Tribunal of Ontario (HRTO) for alleged discrimination under the Code and provide the contact information of the HRTO and Human Rights Legal Support Centre (HRLSC)
- Notify the institution tasked with oversight for systemic discrimination in policing about complaints received and investigations conducted that involve allegations of discrimination, including applications to the HRTO alleging discrimination in policing services
- Publicly release all reports investigating serious injury or death of civilians in incidents involving the police. The reports should have human rights-based information about the victim, including the victim’s race, gender, age, and whether the victim had or was perceived to have a mental health disability, subject to redactions to comply with privacy legislation
- Collect human rights-based identity data from complainants alleging police misconduct on a voluntary basis. The data should be standardized, disaggregated, tabulated and publicly reported
- Publicly report on:
- the number of complaints, investigations, and/or appeals conducted that involve allegations of discrimination in policing contrary to the Code, broken down by the prohibited grounds of discrimination in the Code; and
- the number of people who were seriously injured or died in incidents involving the police, broken down by race, age, gender and whether the person had or was perceived to have a mental health disability.
- Amend the limitation periods to file an officer misconduct complaint and an application with the HRTO with respect to discrimination in policing so that they do not begin to run until the release of any report investigating serious injury or death of the civilian
- Ensure that public complaints of officer misconduct, including those that allege discrimination, are not investigated by the police services the complaints are related to
- Ensure that investigators within oversight bodies reflect the communities they serve and are not substantially comprised of former police officers.
Strategy for a Safer Ontario – OHRC submission to the Ministry of Community Safety and Correctional Services (April 29, 2016)
As part of its Strategy for a Safer Ontario (SSO), the Government of Ontario reviewed and was considering revising the Police Services Act. The OHRC provided recommendations to the Ministry of Community Safety and Correctional Services (MCSCS) on systemic discrimination in policing:
Recommendations to the Government of Ontario:
- Adopt and implement all appropriate standards, guidelines, policies and strict directives to address and end racial profiling in policing, including but not limited to:
- A clear definition of racial profiling that is consistent with the Human Rights Code
- Criteria for when an officer may approach an individual in a non-arrest scenario, and criteria for what may not form a basis for an officer approach (see, for example, Appendix A)
- An appropriate framework for rights notification (see, for example, Appendix A)
- A prohibition on using race in suspect, victim or witness selection, unless the police are dealing with a sufficiently specific description.
- At a minimum, prohibit police services from conducting immigration status checks on victims, witnesses or individuals under investigation, or from asking them about their immigration status, unless there are credible, non-discriminatory and bona fide reasons for doing so.
- Commission an independent, human rights-focused review of the provincial use of force model, make the result public, and commit to implementing any recommendations.
- Adopt and implement all necessary standards, guidelines, policies and strict directives to end discriminatory use of force on people with mental health disabilities and/or addictions, including but not limited to:
- requirements that officers de-escalate and use communication strategies to effectively serve people with mental health disabilities and/or addictions, and refrain from using force for as long as possible, consistent with officer and public safety
- 24 hours per day, seven days a week, availability of Mobile Crisis Intervention Teams (MCITs) or officers with specialized training and enhanced skills so police can provide equitable and appropriate services to persons with mental health issues and/or addictions.
- Adopt and implement all necessary standards, guidelines, policies and strict directives to ensure that members of Code-protected groups are not discriminated against in any way through the work of situation tables, including clear limits on discriminatory disclosure of personal information. As a starting point, the Government should adopt the recommendations of the Information and Privacy Commissioner of Ontario with respect to situation tables; require that outcomes be tracked using human rights-based data; and commission an independent, human-rights focused review of situation tables, make the result public, and commit to implementing any recommendations.
- Adopt and implement all necessary standards, guidelines, policies and strict directives to minimize the adverse impact of the use of tasers on people with mental health disabilities, addictions or people who are intoxicated, to the point of undue hardship.
- Meaningfully engage and work closely with Indigenous communities to understand the concerns and issues they face in the context of law enforcement; and work with the federal government to develop a clear action plan with detailed timelines to address these concerns.
- Work closely with the federal government to ensure that its Inquiry into Missing and Murdered Indigenous Women and Girls is national in scope, and includes consideration of racism and sexism in municipal and provincial police investigations of missing and murdered Indigenous women and girls. If it does not include these considerations, the provincial government should conduct an inquiry that does so. The provincial government should commit to implementing any relevant recommendations arising from the Inquiry into Missing and Murdered Indigenous Women and Girls.
- Meaningfully engage and work closely with Indigenous communities to transparently address any remaining concerns related to racial profiling in policing of Indigenous protests.
- Ensure that funding for First Nations police services is equitable so that funding does not result in the provision of inferior policing for First Nations, and fully implement related recommendations from the Ipperwash Inquiry.
- Require independent, arms-length and public monitoring of police services and police services boards regarding systemic discrimination through, for example, periodic audits; inspections of policies, procedures, training, databases and records; and public reporting.
- Require police services to establish permanent data collection and retention systems to record human rights-based data on all stops of civilians, use of force incidents, and interactions where officers ask about immigration status or conduct immigration status checks. The data should be standardized, disaggregated, tabulated and publicly reported by each police service.
- Commission an independent study to examine the feasibility of requiring all uniformed officers to be equipped with body-worn cameras, and make the findings of the study public.
- Develop appropriate privacy guidelines for the use of body-worn cameras in consultation with the Information and Privacy Commissioner of Ontario.
- Ensure that officers are disciplined, up to and including dismissal, when their behavior is consistent with racial profiling or discriminatory use of force on people with mental health disabilities and/or addictions.
- Expressly provide police disciplinary tribunals with the jurisdiction to allow intervention by a non-party as a “friend of the court” in officer misconduct hearings.
- Require police services boards to address systemic discrimination by directing chiefs of police with respect to policy or practices informed by policy governing the carrying out of duties and responsibilities of the police.
- Direct police services boards to measure and evaluate police service performance on racial profiling and discriminatory use of force on people with mental health disabilities and/or addictions, take corrective action to address systemic discrimination, and provide clear and transparent information to the public on racial profiling and discriminatory use of force on people with mental health disabilities and/or addictions.
- Adopt and implement all measures necessary to ensure that police services and police services boards reflect Code-protected groups and the community they serve. Report on activities, outcomes (census data), and progress publicly.
- Ensure that police services, boards, the OIPRD, OCPC and SIU have the resources, skills, competencies, and training to effectively address discrimination, fulfill their governance role and ensure accountability for human rights.
- Require regular, detailed and ongoing human rights-focused training, developed in consultation with affected groups, on racial profiling, mental health, de-escalation, and unconscious bias for new recruits, current officers, investigators and supervisors. Police officers should be required to take human rights training at least every three years.
OHRC submission to the Ministry of Community Safety and Correctional Services on street checks (December 11, 2015)
In October 2015, the Ministry of Community Safety and Correctional Services (MCSCS) solicited public input on draft regulations on street checks. The OHRC provided recommendations to MCSCS on racial profiling in street checks.
- The OHRC recommends that, barring exigent circumstances, police be prohibited from using race in suspect, victim or witness selection unless the police are dealing with a specific description. Furthermore, as noted below, “a suspect, victim or witness description that lacks sufficient detail other than race” should not satisfy the required criteria for conducting a street check. For additional guidance in this area, the OHRC encourages the Ministry to review the Ottawa Police Service’s Racial Profiling Policy, which states:
A police officer shall not, in the absence of a reasonable and racially neutral explanation, maintain that a racialized individual matches the description of a known suspect where:
- there are clearly distinguishing features between the two individuals; or
- the officer cannot articulate what other parts of the description he or she was relying on (e.g. height, weight, age, location, or other features).
- To permit non-discriminatory, non-arbitrary legitimate policing activity, while sufficiently guiding officer discretion to prevent discriminatory and arbitrary street checks, the OHRC recommends that the Draft Regulation be amended to adopt the following criteria:
- A police officer may not approach an individual in a non-arrest scenario that involves and/or is for the purpose of asking for and/or obtaining identification, personal information and/or information about an individual’s circumstances, except for legitimate non-arbitrary non-discriminatory policing activities as set out in clause 2 below (Clause 2).
- A police officer may only approach an individual in a non-arrest scenario that involves and/or is for the purpose of asking for and/or obtaining identification, personal information and/or information about an individual’s circumstances if:
- the approach is solely for the purpose of investigating a specific criminal offence or series of specific criminal offences and the officer has reasonable suspicion that the individual is implicated in the criminal activity under investigation and/or the officer has reasonable belief that the individual is connected to the offence as a victim and/or witness; or,
- the approach is solely for the purpose of preventing a specific type of offence from occurring and the officer has reasonable suspicion that the individual is implicated in the criminal activity under investigation and/or the officer has reasonable belief that the individual is connected to the offence as a victim and/or witness;
- the officer believes that the approach and request for identification, personal information or an individual’s circumstances is necessary to prevent an imminent or apparent risk or harm to the individual or another identified person;
- the officer is aware that the approach is necessary because the individual is under a statutory obligation to provide a license or identification, such as when an individual is operating a motor vehicle;
- the officer is aware that the approach is necessary for the enforcement of a provincial statute or municipal by-law; or,
- the officer is securing a potential crime scene, participating in a security detail or acting in an emergency, and requests identification from an individual in a restricted area or seeking to enter a restricted area in order to determine whether the individual should have access to the area and under what conditions.
- The following are not a basis for street checks and shall not satisfy Clause 2 of this Position:
- an unspecified future offence or criminal investigation, or a
- profiling or stereotyping based on race, gender identity, gender expression, sexuality, mental health, socioeconomic status, and/or other prohibited grounds of discrimination under the Charter or the Human Rights Code;
- a person’s exercise of his or her right to remain silent, right to object
to being approached, or right to walk away;
- a “hunch” or unsupported suspicion or belief, whether based on intuition gained by experience or otherwise;
- mere presence in a particular neighbourhood, high-crime neighbourhood or “hot spot”;
- a suspect, victim or witness description that lacks sufficient detail other than race;
- meeting a quota or performance target for number of street checks; and,
- raising awareness of police presence in the community.
- For greater certainty:
- an approach in the absence of reasonable suspicion or reasonable belief as set out in 2(a) or 2(b), for the purpose of eventually acquiring such reasonable suspicion or belief, shall not satisfy 2(a) or 2(b).
- prolonging any interaction with the intent of acquiring reasonable suspicion or belief as set out in 2(a) or 2(b) shall not satisfy 2(a) or 2(b).
- The OHRC is concerned that the Draft Regulation does not ensure comparability and accountability such that trends can be observed across Ontario and data may be probative of racial profiling. There needs to be greater standardization. Thus, the OHRC recommends:
- Individual police services, at a minimum, be required to collect the data based on the following racial categories:
- Indigenous peoples
- East Asian, Southeast Asian
- South Asian
- Middle Easterner
- Other Racialized Group
- Specific tabulations of the data that may be probative of racial profiling be required in the annual report (for example, the representation of young Black males in attempted collections of identifying information broken down by reason).
- Information collected include: the date, time, location, reason for and outcome of the attempted collection of identifying information.
- The OHRC is also concerned about access to the accountability data, the purpose of which is not to gather intelligence, but to identify, monitor and address racial profiling. Thus, the accountability data must be housed separately from intelligence or investigative data and not be accessed for these purposes. Data should be collected in a manner consistent with the human rights principles outlined in Count me in!, the OHRC’s guide to collecting human rights-based data.
- Police services boards must provide consistent, effective oversight and accountability with respect to racial profiling. The Draft Regulation provides some important direction to police chiefs, yet it fails to account for the authority and responsibility of police services boards to hold their services to account for racial profiling. Boards should conduct audits of compliance with the regulation and board policy and an independent monitor should oversee compliance with the regulation.
Submission of the Ontario Human Rights Commission to the Office of the Independent Police Review Director’s Systemic Review of Ontario Provincial Police Practices for DNA Sampling (April 2014)
The Ontario Provincial Police (OPP) was alleged to have engaged in racial profiling when requesting DNA samples in a 2013 sexual assault investigation. In response, the Office of the Independent Police Review Director (OIPRD) undertook a systemic review of the OPP’s DNA sampling practices. The OHRC provided recommendations to the OIPRD on racial profiling in police DNA collection.
- The OPP should develop and implement distinct policies and procedures that clearly prohibit racial profiling, and include, among other things, the following key elements:
- The principle that all persons have the right to live and work in an environment that is free of racial profiling by the police
- Recognition that racial profiling exists in Ontario and that police may do it
- A clear definition of racism and racial profiling
- Recognition that racial profiling causes significant harm, particularly to Black and Aboriginal communities, and hampers the confidence of these communities in policing
- Examples of how racial profiling manifests in police activities like pedestrian and traffic stops, consent searches, investigative detentions, suspect selection and DNA sampling
- The disciplinary consequences of racial profiling, up to and including dismissal
- The roles and responsibilities of members, supervisors, the Chief of Police, the professional development centre and any other relevant stakeholders to ensure compliance with the terms of policy.
- Racial profiling policies should reflect the needs of the police service and the community it serves, so it is important that the OPP consult with racialized groups and Aboriginal Peoples when developing them.
- To ensure compliance with racial profiling policies and procedures, all OPP stakeholders – starting with top leadership – should be involved and committed to developing, promoting and implementing them.
- The OHRC recommends training on racial profiling for new recruits, current officers, investigators and supervisors.
- The Toronto Police Service and the HRTO highlight the need for anti-racial profiling training. The Toronto Police Service’s Police and Community Engagement Review (the PACER Report) states that “the training of Officers is an essential part of ensuring the Service achieves its organizational aspirations of treating everyone in an impartial, equitable, sensitive and ethical manner.” As well, the HRTO has explained that “[i]f 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.”
- OPP racial profiling training should, among other things:
- Be designed and delivered by trainers with racial profiling expertise
- Involve local racialized and marginalized communities in designing, delivering and evaluating it, including identifying relevant racial profiling scenarios
- Convey the importance of good community relations
- Describe the nature of racism, including its particular impact on Black and Aboriginal communities
- Explain that racial profiling violates the Code, Charter, Police Services Act and police policies and procedures, with references to relevant case law
- Incorporate role-play and scenario-driven learning modules to improve its “street-level application and articulation”
- Address how people who think they are being racially profiled might become angry or upset, and make sure this does not lead to further differential treatment
- Communicate that racial profiling is unacceptable and will result in disciplinary penalties, up to and including dismissal
- Explain why respect for human rights is aligned with the OPP’s objectives.
- Information about racial profiling should also be integrated into other training where it is particularly relevant, such as that on investigative detention, consent searches, customer service and conflict de-escalation, mediation and resolution.
- Any racial profiling or other human rights training should be reviewed and evaluated to make sure that learning goals are being met.
- The OHRC recommends that the OPP collect race-based data on police stops, searches and DNA sampling practices to identify, monitor, evaluate and reduce racial profiling. Collecting similar data is already common practice in the United States and the United Kingdom.
- Data collection should be supplemented by qualitative research methods, such as focus groups. While quantitative data helps measure the extent of racial disproportionality in police activities, qualitative methods allow police to better understand officer motivations and the nature of police interactions that are consistent with racial profiling.
- Regularly collecting race-based data using credible, accepted data collection methods, can, among other things:
- Identify patterns of behaviour that are consistent with racial profiling, and help police services to remove systemic barriers
- Help to evaluate anti-racism and anti-racial profiling programs
- Reveal gaps and improvements that can be made to racial profiling policies, procedures, training and accountability measures
- Improve police relationships with racialized communities.
- When gathering information, the OPP should do so in a way that is consistent with the human rights principles outlined in the OHRC’s guide, Count me in! Collecting human rights-based data. Racialized communities, Aboriginal Peoples and other relevant community stakeholders should be consulted about the purpose, use, benefits and methods of collecting data. Once the data has been analyzed and interpreted, the results should be made public in an accessible format.
- The OHRC recommends that the OPP actively recruit, select, promote and retain people from racialized groups, Aboriginal communities and other under-represented groups to reflect the populations it serves.
- Many police services, including the TPS and Peel Regional Police, have already taken significant steps to establish a diverse workforce. The TPS believes “a more representative police service is an essential affirmation of human rights values, and a key way to develop capacity to better serve a very diverse city with many different human rights issues.”
- We also recommend that the OPP proactively screen for racial bias among applicants before hiring them. This best practice has been implemented by the Toronto Police Service.
- As MCSCS is responsible for the Policing Standards Manual, which sets out standards for Ontario police services and offers recommendations for local policies, procedures and programs, we recommend that it provide appropriate direction to the OPP on all the areas outlined above.
Paying the price: The human cost of racial profiling (October 21, 2003)
In February 2003, the OHRC launched an inquiry into the effects of racial profiling on individuals, families, communities and society as a whole. The inquiry report includes recommendations to the Government of Ontario, organizations and institutions on how to combat racial profiling in Ontario. The following recommendations are listed as “action” items in the report.
- The government should establish a Racial Diversity Secretariat with a mandate to:
- report annually on issues of racism in Ontario;
- review and report on the implementation of recommendations in previous reports on racial profiling;
- review and report on the implementation of recommendations in previous reports specific to Aboriginal peoples, in particular the 1996 Report of the Royal Commission on Aboriginal Peoples;
- influence and support government policy development activities to ensure that racial diversity and equity are respected and promoted in all government initiatives;
- facilitate dialogue between those with concerns about racial profiling
and public and private sector service providers; and
- engage in public awareness and education activities concerning racial diversity.
- All organizations and institutions entrusted with responsibility for public safety, security and protection should take steps to monitor for and prevent the social phenomenon of racial profiling, and develop or modify their policies, practices, training and public relations activities in this regard.
- Organizations or institutions that have, or are alleged to have, a problem with racial profiling should review recommendations set out in earlier studies, should report on those that have been implemented and establish a timetable for executing those recommendations that remain outstanding.
- With respect to Aboriginal persons, organizations or institutions involved in the delivery of services to the Aboriginal community should review their practices to ensure that they are adapted to the unique needs of Aboriginal persons and that their staff is properly trained in issues concerning the Aboriginal community.
- Organizations or institutions that have, or are alleged to have a problem with racial profiling, should accept and acknowledge the existence of racial profiling as well as the need to address the concerns of the communities they serve.
- Persons in positions of leadership in Ontario, including government officials, should accept and acknowledge the existence of profiling and demonstrate a willingness to undertake action to combat it.
- All organizations serving the Ontario public should adopt a zero tolerance policy regarding racial profiling and should communicate it clearly to all staff.
- Economic analysts, business, private and public sector leaders should consider the effect of racial profiling when analyzing economic costs and productivity issues.
- Organizations or institutions that have, or are alleged to have a problem with racial profiling should meet with concerned communities on an ongoing basis to discuss concerns and work with these communities to facilitate solutions.
- Where anecdotal evidence of racial profiling exists, the organization involved should collect data for the purpose of monitoring its occurrence and to identify measures to combat it. Such organizations should consult with affected communities and the Ontario Human Rights Commission to establish guidelines on how the data will be collected and its use. Such data should not be used in a manner to undermine the purposes of the Ontario Human Rights Code.
- The Ministry of Community Safety and Correctional Services should undertake a public consultation to determine the best way to ensure that the police complaints mechanism is, and is seen as, independent and effective. Necessary changes to the current system should be made accordingly.
- Organizations or institutions that have, or are alleged to have a problem with racial profiling should engage in ongoing effective training initiatives on racism, race relations and racial profiling.
- The Ministry of Education should incorporate anti-discrimination and diversity training in the elementary and secondary school curriculum. This should also be the case for private schools operating in Ontario.
- Organizations or institutions that have, or are alleged to have a problem with racial profiling should undertake measures to improve recruitment, retention and promotion of employees who are members of racialized groups.
- Police services across the province should install cameras in police cruisers to allow for monitoring the interaction between the police and public.
- Police officers and private security guards should wear name badges that are clearly displayed.
- Organizations or institutions that have, or are alleged to have a problem with racial profiling, should provide new staff with sufficient support to ensure that they learn appropriate practices and not resort to racial profiling due to the stresses of the job.
- In conjunction with local communities, police services should develop educational materials, particularly aimed at youth, explaining citizens’ rights.
- Organizations or institutions that have, or are alleged to have a problem with racial profiling should study the best practices of other organizations that are dealing with racial profiling, both in Canada and abroad, with a view to implementing them.