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Enforcing rights in the criminal justice system: holding the police accountable

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Our strategic direction

The OHRC will enforce human rights and reduce systemic discrimination and inequality experienced by people who are among the most marginalized in our communities by seeking human rights accountability in the criminal justice system.

Addressing discrimination in policing will make Ontarians safer

For nearly two decades, the OHRC has raised concerns and called for change to eliminate systemic discrimination in policing. Our goal has been to eliminate practices that, in too many instances, have become part of the culture of policing in Ontario.

We called for a new approach to policing in a May 2016 submission to the Ministry of Community Safety and Correctional Services on its Strategy for a Safer Ontario and changes to the Police Service Act.

OHRC Chief Commissioner Mandhane called this “a once in a generation moment to provide input and change the course of policing in Ontario.”

Our submission cited serious human rights issues that undermine public trust in policing: racial profiling of Black and Indigenous people, discriminatory use of force on people with mental health disabilities, inequity in funding for First Nations police services and discrimination in the investigation of missing and murdered Indigenous women.

We made 21 recommendations to end discriminatory policing and rebuild community trust. Examples are to:

  • Require police services to establish human rights-based data collection and retention systems
  • Adopt and implement all appropriate standards, guidelines, policies and strict directives to address and end racial profiling in policing.
  • Commission an independent, human rights-focused review of the provincial use of force model, make the result public, and commit to implementing any recommendations
  • 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
  • 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.

Reflecting community voices

The OHRC submission was endorsed by a broad range of community and advocacy groups, including:

  • Aboriginal Legal Services
  • African Canadian Legal Clinic
  • ARCH Disability Law Centre
  • Association of Black Law Enforcers
  • Black Action Defense Committee
  • Campaign to Stop Police Carding
  • Canadian Civil Liberties Association
  • Canadian Arab Federation
  • Canadian Association of Black Lawyers
  • Canadian Human Rights Commission
  • Colour of Poverty – Colour of Change
  • Empowerment Council
  • Human Rights Legal Support Centre
  • Jamaican Canadian Association
  • Law Union of Ontario
  • Metro Toronto Chinese & Southeast Asian Legal Clinic
  • Ontario Federation of Indigenous Friendship Centres
  • Peel Coalition Against Racialized Discrimination
  • South Asian Bar Association
  • South Asian Legal Clinic of Ontario
  • Toronto Police Accountability Coalition.

One community, many voices…

“As Black Law Enforcers, we live and work in two worlds that have allowed us to develop unique perspectives. From the inside out we fully support the work of the Commission and organizations from our community that are focused on creating transparent, fair, safe, and equitable policing.”

  • Kenton Chance, Association of Black Law Enforcers, @ABLE_org

“There needs to be an inter-ministerial effort to enable people to get their basic human needs met, which for many will prevent a crisis that ends up in an encounter with police. Encounters with police can result in a stay in a hospital or a jail – but in human and economic terms, it costs so much less to provide affordable housing and a decent income.”

  • Jennifer Chambers, Empowerment Council, @EmpowermentCoun

"The Ontario Human Rights Commission’s submission to the Ministry of Community Safety and Correctional Services re: the Strategy for a Safer Ontario addresses matters of importance to our community in general and specifically speaks to anti-black racism. Most importantly, its recommendations are a rational, informed and comprehensive approach for effective, sustainable and community-based policing."

“The Ontario Federation of Indigenous Friendship Centres support these recommendations that we hope will bring change to policing in Ontario.  Racial profiling and discriminatory community-based policing practises negatively affect urban Indigenous people in disproportionate numbers. Policing that involves responsive community engagement and trust-building are keys to safer communities.”

  • Kelly Patrick, Ontario Federation of Indigenous Friendship Centres, @TheOFIFC

“Neptune 4” case highlights issues with police oversight 

The OHRC sought to intervene in the “Neptune 4” case being heard by the Toronto Police Service Disciplinary Tribunal. Four Black teens were arrested at gunpoint by police officers in 2011 while on their way to a tutoring session. Security video shows one of the teens being punched and pulled to the ground. The teens were not convicted of any offence. Ontario’s Office of the Independent Police Review Director (OIPRD) found that charges of officer misconduct were warranted. The OHRC argued that the case raised issues of racial profiling.

In June 2015, we filed a motion seeking leave to intervene as a “friend of the court” to provide written and oral argument on racial profiling to the Tribunal. More than a year later, in July 2016, the Tribunal denied our motion on jurisdictional grounds.

In a public statement, we said that the denial of our motion “illustrates the fact that the Ontario police complaints system cannot be relied upon to address racial profiling and is not sufficient to restore public trust,” and that the OHRC remains concerned that “there is no effective mechanism to hold police accountable for systemic discrimination.” We also called on the government to “require independent, arms-length and public monitoring of police services and police services boards regarding systemic discrimination.”

A Toronto Star editorial about our attempt to intervene said that “either the rules should be changed to allow hearing officers the right to grant organizations intervenor status in special circumstances, or the commission should apply for a judicial review of the hearing officer’s decision to create a legal ruling on the issue.”

Data collected by Ottawa Police Service consistent with racial profiling

In October 2016, OHRC Chief Commissioner Mandhane made a deputation at the Ottawa Police Services Board. We provided information about our report on the Ottawa Police Service’s (OPS) Traffic Stop Race Data Collection Project. The data was collected as a result of a 2012 settlement between the Ottawa Police Services Board and the OHRC, after Chad Aiken, a young Black man, filed a human rights complaint alleging racial profiling based on “driving while Black.”

As part of the settlement, the OPS agreed that its officers would collect race-based data on traffic stops for two years beginning in 2013. The OPS fully complied with the settlement and even went beyond what was required in its data collection efforts, resulting in a comprehensive police data collection initiative.

The researchers found that Black and Middle Eastern people experienced disproportionately high incidences of traffic stops, just as Mr. Aiken alleged in his human rights application. Young male Black drivers aged 16-24 were stopped 8.3 times more than would be expected based on their driving population. And young male Middle Eastern drivers were stopped 12 times more. Another concern was the result of the traffic stops of Black, Indigenous, Middle Eastern and other racialized drivers. The researchers concluded that “there was a greater propensity that these four racialized minority groups were traffic-stopped for nothing serious enough to be warned or charged, when compared with the White group.”

But collecting data is just one part of the story – and it is secondary to the devastating personal experiences of Chad Aiken and other people whose rights are often ignored, and who face great personal risk, all related to the colour of their skin or their religion.

When considered together with the personal accounts that led to the data being collected in the first place, the findings are alarming. They are entirely consistent with racial profiling, and cannot and should not be easily explained away. That’s why the OHRC – and racialized communities – were disappointed when the OPS took the position that the data did not “prove” racial profiling.

The OHRC called on the OPS to:

  • Interpret the results in the context of the historical relationship between police and racialized and Indigenous communities in Ottawa and in Canada more generally
  • Acknowledge that the high disproportionalities found in the data are strong circumstantial evidence of racial profiling
  • Examine deployment strategies that lead to greater traffic stops for racialized people in “high crime” areas – which itself is likely to be a form of systemic racial profiling.
  • Put in place meaningful and effective measures to prevent and eliminate all forms of racial profiling.

We continue to monitor OPS’ efforts to address racial profiling in all its forms.

Seeing results: Justice Tulloch provides roadmap for more effective police oversight

Across North America, including in Ontario, marginalized peoples’ calls for changes to police oversight have grown louder, with frequent demonstrations and demands for a complete overhaul.

In November 2016, the OHRC made recommendations to the Independent Review of Police Oversight Bodies, led by the Honourable Justice Michael H. Tullloch.

This review provided a critical moment to enhance monitoring and accountability for systemic discrimination in policing, and we called on the government to take bold steps to promote a culture of human rights accountability and rebuild trust in law enforcement.

The lack of transparent, independent and proactive monitoring and investigation of police services, coupled with an effective mechanism to hold police accountable for systemic discrimination, have been at the very heart of movements like Black Lives Matter and advocacy around justice for missing and murdered Indigenous women and girls. Accountability also underlies the Truth and Reconciliation Commission of Canada’s calls to action to all levels of government, to eliminate the over-representation of Indigenous peoples in custody over the next decade.

In early April 2017, Justice Tulloch released his report, which reflected many of the community’s and OHRC’s recommendations. Taken together, the recommendations provide a framework that would allow for better monitoring and accountability for systemic discrimination and rebuilding public trust, including:

  • Demographic data collection by police oversight bodies
  • Independent prosecution and adjudication of public complaints, with interventions by third parties
  • The ability of the Office of the Independent Police Review Director (OIPRD) to initiate investigations in the public interest, even if no complaint is filed
  • Mandatory social and cultural competency training for staff, developed and delivered in partnership with Indigenous and other community organizations
  • Recruitment to ensure that staff and leadership more closely reflect the communities they serve.

Implementing the recommendations is essential, but systemic discrimination can only be addressed if there is a cultural shift within police oversight agencies themselves.

We will continue to monitor the government and oversight agencies’ implementation of the recommendations, and will comment on future legislation when it is introduced.

Responding to reports of systemic discrimination and racism by the Thunder Bay Police Service

In October 2016, we met with leadership of the Thunder Bay Police Service (TBPS) to discuss concerns that leaders and members of the Indigenous community had brought to our attention relating to alleged racism and systemic discrimination. The TPSB leadership reaffirmed a public commitment to cooperate fully with the investigation into systemic racism in the TBPS by the Office of the Independent Police Review Director (OIPRD).

Following this meeting, we wrote to the TBPS advising that the allegations of racism and systemic discrimination within the TBPS require proactive, immediate and independent steps to build confidence and trust in the TBPS. We called on the TBPS and the TPBS Board to undertake proactive efforts to develop and sustain organizational capacity to address human rights concerns, and to publicly commit to a coordinated, time-bound, and appropriately resourced human rights organization change project.

The Thunder Bay Police Service made a public commitment to embark on a major human rights organizational change initiative, following the steps in our guide, Human rights and policing: Creating and sustaining organizational change. Senior staff visited Thunder Bay and delivered training to help the TPSB begin their independent work on this project.

We continue to monitor ongoing issues related to the Thunder Bay Police Service, and look forward to the forthcoming review by the Office of the Independent Police Review Director (OIPRD).

“Unfounded” – a human rights issue

In February 2017, Chief Commissioner Mandhane wrote an op-ed in the Globe and Mail, framing Robin Doolittle’s investigation into the practice of listing police reports of sexual assault as “unfounded” – as a systemic human rights issue. She wrote:

Like much of the systemic discrimination in the criminal-justice system, failure to properly investigate and prosecute sexual offences likely begins with an overreliance, whether consciously or unconsciously, on stereotypes. These stereotypes or rape myths are myriad and well-documented: stereotypes about the types of women who get assaulted, how they should behave during an assault and how they should behave afterward…

In the past few years, high-profile trials and low conviction rates for sexual assaults have spurred conversations about these myths and the role they play in the courtroom. The data that underpins The Globe’s series sheds new light on this conversation. It shows how these myths likely operate in police services across the country in a way previously shielded from public scrutiny. That is the power of data – it can shine a spotlight on an aspect of a problem that has previously been overlooked…

First, police must acknowledge systemic discrimination in policing. They should consider retaining third-party experts to perform an audit of their operations and collect data to identify the many circumstances where systemic discrimination occurs. They must enact policies and procedures to eliminate discretionary decisions that are often the breeding ground for discrimination. They must make sure that all officers and leaders receive rigorous training on systemic discrimination and human rights, ideally incorporating expert knowledge and the lived experiences of the groups most affected. They must ensure that their service reflects the community it serves…

Finally, independent monitoring and accountability must become accepted and standard practice. This includes continuously collecting and analyzing data to measure systemic bias in policing, and disciplining officers who engage in discriminatory practices…

Sexual-assault survivors must be taken seriously. Minority communities must be able to go about their daily lives in peace. Indigenous people must have their lives valued. People with mental-health disabilities must be provided with police assistance when they are in crisis. As a society, we can do nothing less.

Ava Williams, an 18-year-old Western University student, has filed a lawsuit against the London police officer and the London Police Services Board, after her sexual assault allegation was deemed “unfounded.” The lawsuit alleges the detective investigating the case relied on stereotypes and rape myths, which amounted to discrimination based on gender contrary to the Charter of Rights and Freedoms.

Protecting the rights of trans persons in police custody: Waterman v. Toronto Police

In July 2015, the OHRC intervened in a Human Rights Tribunal of Ontario Application filed by Boyd Kodak, a trans man who alleged that he was discriminated against based on gender identity and expression by both the Toronto Police Service (TPS) and the Ministry of Community Safety and Correctional Services (MCSCS). He alleged that he was placed in the women’s sections of both police and correctional facilities; had his gender-affirming articles confiscated; was required to wear women's institutional clothing in the correctional facility, at court, and when he was released; and was exposed to harassment.

Both Mr. Kodak and the OHRC sought systemic remedies that would require the TPS and TPSB to revise their policies and practices to respect the rights and specific needs and circumstances of trans people. We did not seek public interest remedies from MCSCS because after the application, it revised its policies on the treatment of trans prisoners, working closely with the trans community and the OHRC.

In 2016, Mr. Kodak, the OHRC, the TPS and TPSB reached a settlement requiring major steps to address the treatment of trans people in custody. The Toronto Police must:

  • Retain a recognized expert on gender identity issues and policing
  • Conduct consultation with the trans community
  • Develop and publicly post information that addresses how the rights of trans persons should be respected during interactions with the police
  • Protect trans people from harassment
  • Develop a plan for ongoing monitoring, evaluation and review of the effectiveness of the new policies, procedures and training related to trans persons, including the option of human rights based data collection.

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