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Ontario Human Rights Commission Submission to the Standing Committee on Justice Policy Bill 68, Comprehensive Ontario Police Services Act

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March 8, 2019

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Ontario Human Rights Commission Submission
to the Standing Committee on Justice Policy
Bill 68, Comprehensive Ontario Police Services Act, 2019

March 7, 2019

The Ontario Human Rights Commission (OHRC) offers the following submission on Bill 68, The Comprehensive Ontario Police Services Act, 2019.

A key opportunity to build trust between police and community

Bill 68 offers a once-in-a-generation opportunity to build trust between police and marginalized and vulnerable communities in Ontario.

The OHRC has long called for bold steps to build trust between police and historically marginalized communities. This must be a top priority for Ontario because there is a clear link between public confidence in policing and public safety. People are less likely to cooperate with police investigations and provide testimony in court if they have negative perceptions of police. Without trust, police cannot provide proactive, intelligence-based policing, and this has profound consequences for our justice system. It also has a significant impact on the cost effectiveness of police services.

Mistrust of police is not a new phenomenon – but it’s a growing one. In September 2017, a Newstalk 1010 poll found that 6 in 10 Torontonians said they would “be scared” if they were pulled over by police for no apparent reason. That’s almost double the number who felt this way back in 2003. And half of respondents felt that police officers rarely or never get punished for wrongdoing, whether it is on or off the job.

Trust in police is especially fractured among groups protected under Ontario’s Human Rights Code (Code). Systemic discrimination in policing plays a key role in the pipeline to criminalization, and is part of the reason that racialized and Indigenous people are over-represented at every stage of the criminal justice system.

In December 2018, the OHRC released A Collective Impact, its interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service. In consultations with Black communities, the OHRC heard repeatedly that unnecessary stops, questioning and searches, using excessive force and laying unnecessary charges led individuals, and indeed entire communities, to experience fear, trauma, humiliation, lack of trust and expectations of negative treatment by police.

The recent review of the Thunder Bay Police Service by the Office of the Independent Police Review Director (OIPRD) confirms that lack of trust in law enforcement is an issue in communities across Ontario.

Moving towards a modern vision of policing

The OHRC is pleased to see that Bill 68 includes many features that can help Ontario move towards a modern vision of equitable policing.

Bill 68 is an opportunity to build trust because it:

  • Recognizes and enshrines the Charter of Rights and Freedoms and Human Rights Code as essential to adequate and effective policing
  • Clearly outlines the responsibilities of police services, boards, and oversight agencies
  • Provides a pathway to sustainable culture change through mandated training, demographic representation on boards, and the creation of community safety and well-being plans that address systemic discrimination
  • Affirms the power of the Complaints Director to “examine and review issues of a systemic nature” and make recommendations following these investigations.

We have heard directly from police services and municipalities that they are excited to embrace this new, more modern vision of policing. And the OHRC is actively engaged with police services to offer assistance in this regard.

Opportunities for improvement

While Bill 68 will clearly move policing in several positive directions, there are opportunities for making it even more effective.

  1. Data collection

The OHRC calls on the government to strengthen Bill 68 by making the collection of human rights-based data mandatory for all police services and all police oversight agencies. Collecting human rights-based data will help identify where the problems lie, and facilitate the creation of targeted solutions.

The OHRC’s current inquiry into racial profiling and racial discrimination by the Toronto Police Service shows how challenging collecting this data can be without government leadership. Because there was no legislative or policy framework in place for consistent data collection by the Special Investigations Unit or by individual police services, collecting and analyzing race-based data has become a multi-year process for the OHRC.

Bill 68 provides many avenues for collecting and acting on qualitative data, but quantitative data is also required to compel meaningful change.

  1. Independent oversight

Police misconduct is a breach of trust, and the public must be assured that true misconduct will be fairly and effectively addressed through strong oversight mechanisms that are both independent and transparent.

In consulting with Black, Indigenous and other racialized communities, the OHRC has found that there is a deep distrust of the current public complaints process. In particular, there is a clear apprehension of bias where police officers of the same service are tasked with investigating the conduct of their fellow officers. These concerns were echoed and confirmed by the Honourable Justice Michael Tulloch in his Report of the Independent Police Oversight Review.

These concerns are also supported by the data. For example, of the 2,926 complaints received by the OIPRD between April 1, 2014 and March 31, 2015, 1,280 were screened-in for investigation. Of these complaints, 1,105 (87%) were referred back to the police service that was the subject of the complaint for investigation, rather than being retained by the OIPRD for independent investigation.

To that end, the OHRC is concerned about the limited scope of the Complaints Director’s powers in Bill 68. Under Bill 68, the process of referring matters back to the police service for investigation by their fellow officers will continue. Similarly, except for circumstances of demotion or termination, Bill 68 provides that a claim of misconduct, including misconduct related to breach of the Code, will be adjudicated by a police officer’s fellow officers. The OHRC believes that both processes lack the necessary independence to build trust.

The OHRC acknowledges the very difficult, and sometimes traumatic, job of police officers. And while police associations claim that strengthening oversight will make police officers’ jobs even harder, the reality is that strong oversight will have a positive impact on a majority of officers. Clear rules, timelines and independent processes mean that the majority of excellent officers will quickly overcome suspicion of impropriety, while true acts of misconduct are dealt with effectively and expeditiously.

Recommended amendments

The OHRC calls on the Government to amend Bill 68 in the two key areas outlined earlier.

  1. Require police services and police oversight agencies to establish permanent data collection and retention systems to record human rights-based data on all:
  • Stops of civilians
  • Use of force incidents
  • 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.

  1. Ensure that all investigations and adjudications of police misconduct are carried out by an independent body, and that misconduct be determined on the civil standard of a balance of probabilities.