Last updated: September 2016
Legal Aid Ontario (“LAO”) is pleased to provide the following submission to the Ministry of Community Safety and Correctional Services (MCSCS) on the development of the Strategy for a Safer Ontario (“the Strategy”). Our submission is premised on the following:
Policing engages fundamental legal rights including security of the person, the right to be free from arbitrary detention, and equality.
Many studies have demonstrated that police practices contribute to systemic disadvantages and discrimination against low-income Ontarians, particularly, members of Aboriginal, racialized, and otherwise vulnerable communities.1
Every day, LAO programs ensure representation to thousands of people in almost every court and tribunal affecting low-income Ontarians. In the area of policing and criminal law, LAO is the largest purchaser and provider of defence services in Canada. LAO has duty counsel in every criminal court in the province. Duty counsel represents hundreds of thousands of low-income Ontarians in a wide variety of criminal proceedings.
LAO also provides criminal defence services through its criminal certificate program. This program, in which LAO provides funding to private bar lawyers to represent criminal accused in serious criminal cases, covers approximately 45% of the adult criminal charges and approximately 65% of criminal youth charges that are processed in Ontario’s criminal courts.
LAO also funds several community legal clinics that have a significant role and interest in criminal justice issues, including the African Canadian Legal Clinic, the South Asian Legal Clinic of Ontario, Justice for Children and Youth, and the Metro Toronto Chinese Clinic.
In addition to being the largest funder of defence legal services, LAO is mandated to promote access to justice for low-income Ontarians and otherwise disadvantaged communities by:
LAO recommends that the Strategy explicitly include among its objectives:
LAO has established a number of “vulnerable client strategies” to better respond to the unmet legal needs of various client communities that are over-represented in the justice system and have been subject to differential treatment. The strategies have a number of common goals and objectives including:
Presently these strategies address the needs of racialized communities, Aboriginal persons, people with mental health issues, victims of domestic violence and the remand population. The strategies are at various stages of development and implementation.
Our submission is very much informed by our understanding of the legal needs of our vulnerable client groups. The submission starts by addressing issues related to each vulnerable client strategy and then proceeds to address the following more general issues:
Over the past two decades a number of high profile reports and academic studies2, as well as the Ontario Court of Appeal, have recognized that racialized communities are over-represented and subject to differential treatment in the justice system as a whole, and in criminal proceedings in particular.
Unequal and discriminatory treatment of racialized communities occurs at all levels of the justice system, particularly in policing and the police practice of racial profiling. The Honourable Roy McMurtry and Dr. Alvin Curling in their 2008 report “The Review of the Roots of Youth Violence”3 recognized the profoundly debilitating effects of racial profiling on racialized communities, and specifically on young men who are subject to these kinds of police confrontations. The report identified overly aggressive police tactics and the use of racial profiling as a contributing cause in the rise of violence among racialized youth.
Racial profiling in policing occurs in many forms, with street checks or carding being just one example. Recent investigative reports show that despite representing just 8.4% of the Toronto population, Blacks represented 24.1% of those carded by the police between 2008 and 2013. In Ottawa, people of Middle Eastern ancestry were carded at a rate of 14%, despite representing only 3.5% of the city’s population between 2011 and 2014.4 For members of racialized communities, particularly Blacks, the reality of racial profiling by the police means, “you will always be considered one of the usual suspects”.5 We refer you to the submission that LAO made to the MCSCS on the issue of street checks or carding.6
We are also concerned about the interaction of racial profiling and the widespread police practice of conducting immigration status checks in respect of persons who interact with officers, whether as accused, witnesses, victims, or subjects of street checks or carding. Although some municipalities have implemented “Don’t Ask, Don’t Tell” policies to preclude the police from questioning people about their immigration status and from disclosing it to federal immigration authorities, which we support, these policies are varied and are inconsistently implemented.
As noted in The Review of the Roots of Youth Violence, the impact of racial bias in policing is seen not only in the actual interactions between police and the members of racialized communities, but also in the consequences of those interactions:
Racial bias in policing stigmatizes communities and leaves them with a lack of faith in the police and the justice system
For racialized communities, too often interactions with the police escalate into violent confrontations that may result in injuries or even loss of life at the hands of the police7
We note that in circumstances where individuals are injured or killed by the police, the Special Investigations Unit (SIU) initiates an investigation and produces a report regarding the officers’ conduct. Presently, the SIU does not maintain demographic data about individuals who are injured or killed during altercations with the police. Recent reports, however, suggest that members of racialized communities are disproportionately represented among the individuals injured or killed by police in Ontario.8
The Ontario Human Rights Commission, affected communities and agencies serving those communities should be consulted on the design and implementation of systems to collect data to monitor for racial bias and racial profiling in policing. Information collected should include data on the rates of accused released by police on an appearance notice and/or undertaking to a police officer versus those held for a bail hearing following charges being laid.
Work with other government ministries to implement recommendations of the The Review of the Roots of Youth Justice report.
Consult with stakeholders and community groups to design and implement an effective, province-wide “Don’t Ask, Don’t Tell” policy regarding police investigation of a person’s immigration status.
Examine and strengthen the function, independence and accountability of SIU by:
- Establish regulations, policies and standard practices around the release of SIU investigative reports
- Publish SIU Investigative reports
- Review the function, independence and accountability of SIUs in jurisdictions outside Ontario9
The over-representation of Aboriginal peoples in the Canadian justice system is well-documented.10 As a result of the legacy of colonization and systemic discrimination, Aboriginal peoples have a long and difficult history of involvement with Canadian law and legal systems, most notably in the child protection, criminal law, and youth justice systems.
First Nation, Métis and Inuit clients account for 15% of all LAO certificates and make up 20% of all criminal law clients while accounting for only 2% of the population in Ontario. Provincial jail admissions for Aboriginal male youth are five times higher than their representation in the general population. Aboriginal girls are ten times over-represented and account for one of every three jail admissions to a provincial facility for female youth.11
As well as being over-represented in the justice system, First Nation, Métis and Inuit are also simultaneously under-policed. While Aboriginal people are more likely than non-Aboriginal people to have contact with the police when they are investigating serious criminal matters, they are far less likely to be able to have access to police services to protect and support them in their communities.12
Several reports, inquests and inquiries have recognized the need for an overhaul of policing practices to ensure that they are respective and responsive to the needs of the Indigenous community. The crisis of missing and murdered Aboriginal women is the most obvious and tragic example of the under-policing of the Indigenous community. This crisis cries out for a response from all levels of government responsible for policing.
Consult First Nation, Métis and Inuit communities and the agencies serving those communities on how to improve and or expand on policing models that reflect traditional Indigenous practices.
Work with First Nation, Métis and Inuit communities to recruit more Indigenous police officers and to increase support and funding for establishing a First Nations Policing Program.
As with LAO’s other vulnerable populations, there is a similar history of over-policing and over-criminalization of people with mental health issues. This history has brought these individuals into our prison population without access to critical community supports or proper medical treatment.
More specifically, many reports suggest that the vast majority of people living with mental illness, who interact with the criminal justice system and the police do so because of minor property and nuisance offences. Often they are engaged in conduct that may not be criminal, but because it causes community disturbance or involves drunkenness, police intervention is required.13
In response to this over-policing problem, increasingly over the last 10 to 15 years, a wide array of academic studies, policies, inquests, inquiries, cases, and pilot projects support the view that modernized policing should focus on de-escalation, crisis intervention, and service connection rather than what has been characterized as futile criminalization and incarceration. This point of view is clearly evident in the Report of the 5th Annual Criminal Justice Symposium14 which brought together senior representatives from the legal sector, law enforcement, NGOs, health care sector and others to make over two dozen recommendations along the lines described above.
Following on this trend, the last several years in Ontario have witnessed the growth of the following kinds of de-criminalization initiatives:
Develop province-wide policies, practices and guidelines to inform and support the de-criminalization models noted above.
The development of province-wide policies for de-criminalization should address the following considerations:
- Improved protection for personal and health information that is obtained by the police when engaging with citizens, including preventing “cross-sector disclosure”, other than through the informed and voluntary consent of the individual
- Clearer separation of public safety functions from traditional policing functions
- Better resourcing
- Consistent approaches across the province
- Heightened rights protection for citizens engaged with the police to better allow access to justice organizations, such as Legal Aid, to support the enforcement of those rights
More generally beyond amending the Police Services Act, consider whether the government’s engagement with persons with mental illness is properly the role of police, or whether it should be viewed as a social service function that is separate from, but may be related to, core policing functions.
The police are often the “first responders” to scenes of domestic violence. As a result, they play a critical role in protecting not only the legal rights of victims of domestic violence but more importantly in protecting the physical safety and often the lives of victims. How the police understand and exercise their authority at the scene will play a critical role in determining how we address the problems of domestic violence in our society.
The Ontario government has implemented a number of initiatives that aim to improve the legal response to domestic violence. One such initiative relevant to police practices is known as the mandatory charging policy. Under this policy, the police are required to make an arrest whenever domestic violence has been alleged by one of the persons at the scene. While well intentioned, one consequence of the policy is that it may fail to respond to the needs of survivors of domestic violence.
There is evidence to suggest that the policy has led to an increase in dual arrests in which the police charge both the abuser and the victim. In essence the mandatory charging policy risks continuing the victimization of the victim and potentially creating reluctance by the victim to call the police. In both dual arrests and sole arrests, individuals who are not the primary aggressors in their relationships are often charged, and the motivation for the use of force that resulted in a criminal charge is not identified. What is often lacking in the police mandatory charging response is an understanding that the alleged use of force may be a response to a pattern of abuse by a partner.
In addition, the police exercise of authority at the scene of domestic violence to conduct other kinds of investigations, and in particular to investigate immigration status, also potentially undermines victims of domestic violence. Survivors of domestic violence who themselves have precarious or no immigration status may be reluctant to seek police intervention, when doing so may result in their own arrest on immigration charges and potential deportation. Similarly, victims whose abusers have precarious immigration status may also be reluctant to call police when doing so will result in mandatory charges being laid that may result in loss of status and/or deportation of the abuser, who may also be a primary income earner or co-parent.
Work with community stakeholders to evaluate the impact of the mandatory charging policy and to develop guidelines that reflect and protect the rights and range of interests of survivors of domestic violence. The policy and or guidelines should consider and enable police to investigate and identify the dominant aggressor and motivation for use of force.
Consult with stakeholders to design and implement an effective, province-wide “Don’t Ask, Don’t Tell” policy regarding immigration status.
All consultations and policy development should include the voices of individuals who have experienced domestic violence as well as the agencies who serve this vulnerable group.
It is well documented that there are serious problems with the bail system in Ontario. Over the past 15 years, these problems have led to a dramatic growth in the remand population despite a falling crime rate. For example:
Nearly 62% of inmates in Ontario provincial institutions are persons who have been remanded into custody.15
Between 2000 and 2010, the number of Ontario provincial inmates who had been remanded into custody, compared to those inmates who were serving a sentence of imprisonment, increased by 55%.16
The most serious charge that 70% of the remand inmates are facing is for a non-violent offence.17
In 2014 the Premier mandated the Attorney General to work with stakeholders to develop a “comprehensive strategy” to address the problems of the bail system. The Premier’s letter to the Attorney General has tasked the Ministry with:
Developing a comprehensive strategy to address systemic challenges related to bail, sureties, remand and delay. You will work with your partner ministries and consult with stakeholders on this strategy, which will include a co-ordinated approach that incorporates mental health initiatives for the accused.
The problems with the bail system are attributable to a number of factors. One factor is police officers failing to exercise their authority to release an accused from the scene or police station.
Outside of a limited number of serious offences, the police are expected under the Criminal Code to release an accused with few conditions or restrictions on his or her liberty. The restrictions are largely geared to ensuring the protection of the public and the accused’s appearance at trial.
Notwithstanding the clear legal rules authorizing the police to release accused persons, and a falling crime rate, there has been a notable decrease in the past 15 years in the police exercise of discretion to charge and release persons from the scene. Instead, the police have been much more prepared to place accused persons under arrest and detain them for a bail hearing. Between 2001 and 2007, the number of criminal cases in Ontario that started in bail court (as opposed to a release from the scene by the police, for example) increased by 38%.18
A number of recent reports addressing both the problems of bail and inefficiencies in the criminal justice system have identified the over-use of police detention practices as an area which requires reform.19 These reports have been authored by parties from both outside and within the criminal justice system. All have recommended that the police make better and more expansive use of their lawful authority to release accused persons with conditions rather than simply relying on their power to arrest and detain accused persons for a bail hearing.
Where an officer decides that an accused person should be held for a bail hearing rather than being released with a summons or appearance notice, the officer should be required to establish in writing to their sergeant the grounds for not releasing the accused in reference to provisions of the Criminal Code.
Police services should be required to collect data on the rates of accused released by police on an appearance notice and/or undertaking to a police officer versus those held for a bail hearing following charges being laid. This data should include the race of accused in each category.
Police service personnel most often come into contact with people in crisis. These people are often from vulnerable communities. These interactions are often triggered by behaviours which may or may not be criminal in nature. Police personnel are in an ideal position to support people in crisis, their families and communities in a positive way. Given the complexities of the issues facing vulnerable communities, the importance of training cannot be overemphasized.
Provide comprehensive training to police officers, dispatchers and other frontline service-providers.
Design and implement training in partnership with members of vulnerable communities, experts, rights-based organizations and community advocates. Where possible, training sessions should be conducted jointly with service providers in other sectors, such as healthcare, social services, and justice providers to promote inter-disciplinary collaboration and understanding of best practices for supporting people in crisis.
At minimum, mandatory training should include the following core subjects or areas:
The core principles of the Youth Criminal Justice Act
The systemic oppression and discrimination experienced by members of racialized communities and effect of racial profiling
Cultural competency training that includes the history, current oppression of and discrimination against Indigenous peoples, including training around the Supreme Court of Canada`s decision in Gladue and Ipeelee
Best practices for engaging and relationship building with Aboriginal peoples and other vulnerable communities
Issues related to mental illness including best practices for de-escalation techniques and modern approaches to supporting people with mental health issues
Issues related to domestic violence, and in particular, the dynamics of domestic abuse and intersectional disadvantages of women experiencing domestic violence who are also immigrants, poor etc.
Programs locally available to support people in crisis and/or members of vulnerable communities including pre- and no-charge diversion programs, social services, mental health treatment programs, programs to support youth, Aboriginal peoples, members of racialized communities etc.
In recent years there has been an emphasis on the development of programs which divert youth and Aboriginal peoples from the criminal justice system towards pre- charge and no-charge responses. LAO supports these initiatives.
Expand program models used to divert youth and Aboriginal peoples from the criminal justice system and expand application to other vulnerable communities such as members of racialized communities.
Establish province-wide guidelines, policies and measurable objectives regarding pre- and no-charge diversion programs.
With respect to people with mental health issues, develop more opportunities for diversion to places other than hospital emergency departments.
LAO applauds the commitment by the Ministry to strengthen community engagement on issues of policing. Community engagement is necessary to build trust between communities and the police. Engagement should be meaningful, participatory and ongoing.
Efforts to engage communities to be effective must recognize the legacy effects of exclusion on marginalized communities and should include community-service and equity seeking organizations and leaders. This is particularly important for communities which have historically been excluded from the development of policing policies which have a particular and disproportionate impact on them.
Proactively address language barriers. A significant percentage of Ontario’s population have a mother tongue that is not English. Language barriers should be proactively and consistently addressed by law enforcement policies, training and allocated resources.
LAO is concerned about the privacy rights implications of current police practices including street checks, and the use of body cameras, particularly for racialized groups, persons with mental health issues and other vulnerable groups. Evidence shows that these groups are frequently targeted by the police for reasons of non-criminal behaviour.
Although the use of body cameras has the potential to be a strong tool for ensuring police accountability and compliance with the Ontario Human Rights Code, LAO is concerned that, without specific privacy protection, this kind of recording tool could be used as a form of surveillance that negatively impacts the rights of vulnerable communities.
LAO recommends that the province establish rules and governance procedures regarding:
- The use, collection, disclosure and retention period of information collected
- Mandatory destruction of records
- Complaint procedures and available remedies when information is used for prohibited purposes
Transparency, including the availability of publicly accessible data (or “open source data”) promotes public trust, democratic accountability, better and more impartial policing, and improved civilian oversight of the police. Ontarians have a right to know as much about policing practices as any other important area of public policy.
Whether through legislation, regulations and/or policies, police services province-wide must be required to record and report on standard performance measures, including police activities involving identifiable vulnerable communities.
To support “open source data”, race-based data must be collected in order to monitor for racial bias and racial profiling practices by the police. This data should be provided to an independent third party in an anonymized database for impartial evaluation.
Clarify the role of police services boards and provide access to appropriate training, support and resources to fulfill their obligations.20
Members of police services boards should be representative of the communities that they serve.
Thank you for the opportunity to provide these submissions.
LAO would be happy to provide further information and input during the public consultation process and the development of any legislative, regulatory or policy change in this matter.
If you have any further questions, please feel free to contact Marcus Pratt, Director, Policy and Strategic Research Legal Aid Ontario at PrattM@lao.on.ca, Kimberly Roach, Policy Counsel, at email@example.com or Wayne van der Meide, Policy Counsel at firstname.lastname@example.org
Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, ( Toronto: Queen’s Printer for Ontario, December 1995) (Co-Chairs Margaret Gittens and David Cole) ; Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling” Inquiry Report 2004, online: www.ohrc.on.ca/en/paying-price-human-cost-racial-profiling
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See overview and discussion in Akawsi Owusu-Bempa and Scot Wortley, “Race, Crime and Criminal Justice in Canada” in The Oxford Handbook of Ethnicity, Crime, and Immigration, Sandra M. Bucerius, Michael H. Tonry (ed) (Oxford University Press, 2013); Case Study in Diversity in Corrections: The Black Inmate Experience in Federal Penitentiaries” , Report of the Office of Correctional Investigator, November 2013; Gail Kellough and Scot Wortley “Remand for Bail: Bail and Plea Bargaining as Commensurate Decisions” (2002), British Journal of Criminology, 42
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Ontario Ministry of Children and Youth Services, online: http://www.children.gov.on.ca/htdocs/English/professionals/oyap/roots/index.aspx; see also the full list of recommendations made in Review of the Roots of Youth Violence, online: http://www.children.gov.on.ca/htdocs/English/professionals/oyap/roots/recommendations.aspx
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Jaques Gallant, “Toronto Carding Vastly Outpaced Ottawa”, The Toronto Star (August 4, 2015), online: http://www.thestar.com/news/gta/2015/08/04/toronto-police-carding-vastly-outpaced-ottawa.html; see also Dr. Scot Wortley & Akwasi Owusu-Bempah, “The usual suspects: police stop
and search practices in Canada” (2011), Policing and Society, 21:4 at 397-399, online: http://munkschool.utoronto.ca/ethnicstudies/files/2013/11/Wortley-and-Owusu-Bempah-2011-The-Usual-Suspects.pdf
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Akawsi Owusu-Bempa and Scot Wortley, “Race, Crime and Criminal Justice in Canada” in The Oxford Handbook of Ethnicity, Crime, and Immigration, supra note 2at 292
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Supra note 3
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Wendy Gillis “How Many Black Men have been Killed by Police”, The Toronto Star (August 16, 2015), online: http://www.thestar.com/news/crime/2015/08/16/how-many-black-men-have-been-killed-by-toronto-police-we-cant-know.html; see also: Scot Wortley, “Police Use of Force in Ontario: An Examination of Data From the Special Investigations Unit, Final Report” (2006) at 6-12 and 37, online: Government of Ontario https://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/policy_part/projects/pdf/AfricanCanadianClinicIpperwashProject_SIUStudybyScotWortley.pdf
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We note that the province has appointed the Honourable Michael H. Tulloch to lead an independent review of the three agencies that oversee police conduct in the province: the Special Investigations Unit (SIU), the Office of the Independent Police Review Director (OIPRD) and the Ontario Civilian Police Commission.
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See for example: First Nations and Juries Independent Review, Report of the Independent Review Conducted by The Honourable Frank Iacobacci (Ontario: Ministry of the Attorney General, February 2013); Truth and Reconciliation Commission of Canada: Calls to Action, Truth and Reconciliation Commission of Canada (Canada 2015)
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Jim Rankin, Patty Winsa, and Hidy Ng. ‘Unequal justice: Aboriginal and black inmates disproportionately fill Ontario jails.’ The Toronto Star (1 March 2013) online: http://www.thestar.com/news/insight/2013/03/01/unequal_justice_aboriginal_and_black_inmates_disproportionately_fill_ontario_jails.html; see also Akawsi Owusu-Bempa and Scot Wortley, “Race, Crime and Criminal Justice in Canada” in The Oxford Handbook of Ethnicity, Crime, and Immigration, supra note 1
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J. Rudin, `Aboriginal Peoples and the Criminal Justice System` Toronto, Ont: Ipperwash Inquiry, 2005.
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Fifth National Criminal Justice Symposium ( original site Canadian Mental health Association, B.C. Division, Criminalization of Metal Illness, (March 2005) online: http://cmha.bc.ca/files.2_criminalization.pdf
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See “Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention”, Canadian Civil Liberties Associations and Education Trust (July 2014), online: https://ccla.org/dev/v5/_doc/CCLA_set_up_to_fail.pdf
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See CM Webster, AN Doob & NM Myers, “The Parable of Ms. Baker: Understanding Pre-Trial Detention in Canada” (2009) 21:1 Current Issues in Criminal Justice 79 [Webster, Doob & Myers, “Pre-Trial”] in “Set Up to Fail”, supra note 1 at footnote 19.
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See for example, “Set Up to Fail”, supra note 1; “Bail Experts Table Recommendations”, Justice on Target, Ministry of the Attorney General, Province of Ontario, online: https://www.attorneygeneral.jus.gov.on.ca/english/jot/bail_experts_table_recommendations.pdf and “Re-inventing Criminal Justice: The Fourth National Symposium Final Report”, The Fourth National Criminal Justice Symposium, British Columbia, 13/14, January 2012.
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Legal Aid Ontario, supra note 6 at p.15
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