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Ena Chadha, OHRC Chief Commissioner

Ontario Human Rights Commission contributes to global call against anti-Black racism

Tuesday, June 29, 2021 @ 4:11 PM | By Amanda Jerome

The Ontario Human Rights Commission (OHRC) has had a busy year bringing a human rights lens to the ever-changing pandemic and addressing anti-Black racism in policing. Its work has even been referenced by the United Nations High Commissioner for Human Rights in a report released this month on anti-Black racism.

The OHRC’s annual report details the agency’s work on anti-Black racism, noting that last year the commission released a second interim report on its “inquiry into racial profiling and racial discrimination of Black people by the Toronto Police Service (TPS).”

Ena Chadha, OHRC chief commissioner

Ena Chadha, OHRC chief commissioner

OHRC chief commissioner Ena Chadha told The Lawyer’s Daily that the United Nations report is the first to urge all countries globally “to take a systemic lens to anti-Black racism in particular and has gone so far as to indicate that the time for reparations [is now], given the centuries of racial injustice experienced by racialized communities, but especially by Black communities.”

She noted the UN’s report, titled “Promotion and protection of the human rights and fundamental freedoms of Africans and of people of African descent against excessive use of force and other human rights violations by law enforcement officers,” references the OHRC’s data on racial profiling by TPS.

According to the OHRC’s annual report, the inquiry into TPS was launched in November 2017, “with the goal of pinpointing problem areas and making recommendations to eliminate them, as a key step to help build trust between the police and Black communities.”

The interim report, the OHRC noted, included analysis from criminologist Dr. Scot Wortley and the results are “highly disturbing, and confirm what Black communities have said for decades — that Black people bear a disproportionate burden of law enforcement.”

The OHRC found that although Black people “represented only 8.8 [per cent] of Toronto’s population” they represented “over one-third (34 [per cent]) of people involved in single-charge ‘out-of-sight’ driving charges (such as driving without valid insurance), which could only be discovered after the police have observed the race of the driver or stopped and questioned the driver.”

Black people were also “more likely to be involved in use of force cases that involved proactive policing (for example, when an officer decides to stop and question someone) than reactive policing (for example, when the police respond to a call for assistance),” the report noted.

According to the annual report, the OHRC called on the TPS, Toronto Police Services Board (TPSB) and the City of Toronto to “formally establish a process with Black communities, Black organizations and the OHRC, to adopt and implement legally enforceable remedies that will result in fundamental change.”

A final report on this issue will be released by the OHRC in the fall of 2021 and will include an “extensive series of recommendations.”

For the final report “Dr. Wortley is completing his analysis of data related to TPS stop, question and search practices” and the OHRC “has been analyzing TPS and TPSB policies, procedures, training and accountability mechanisms,” the annual report noted.

The UN report noted that it is “our collective duty” to address anti-Black racism and it called on all states to use the report to create “action plans and concrete measures developed through national dialogues and with the meaningful participation of people of African descent to address the specific histories, lived experiences and current realities in each State.”

“I think it spotlights the urgency of all legal professionals to think about how do we design and implement law enforcement and justice and create accountability for our actions and our decision making, whether it’s discretionary actions by a police officer, whether it’s by decision making by an adjudicator. How do we create systems that are equitable and deliver equitable results and are transparent?” Chadha asked.

The OHRC is also continuing to monitor police body-worn cameras.

“Based on its Policy on Eliminating Racial Profiling in Law Enforcement, the OHRC is on record as supporting body-worn camera use for front-line officers throughout the province. However, this position should be understood with reference to its October 2020 letter to the Toronto Police Service and Toronto Police Services Board on their policy and procedure on body-worn cameras,” its annual report explained.

The OHRC stated in its letter to TPS that “for body-worn cameras to support accountability for officer misconduct, procedures around their use must be robust,” and, the report noted, that “without rigorous monitoring and accountability requirements, ‘body-worn cameras will be an expensive and perhaps ultimately worthless investment, at a time when communities are calling for defunding and drastic reductions in police budgets.’ ”

The annual report outlines “robust accountability and monitoring systems” for body-worn cameras, which include: “clear criteria for when cameras must be off, but audio stays on, such as Level 3 and Level 4 strip searches and cavity searches; and in healthcare facilities, unless an exception applies;” “clear criteria for when cameras should be off, such as at protests, unless officers are directly engaging with protestors;” and “addressing personal privacy concerns by specifically, among other things, protecting categories of vulnerable individuals (e.g., victims of sexual violence, hospitalized individuals) from being recorded without their informed consent.”

“Privacy guidelines should be developed in consultation with the Information and Privacy Commissioner of Ontario,” the report added.

The OHRC will “continue to assess the implications of changing technology and the degree that body-worn cameras are implemented in ways that enhance accountability, while adhering to” the Human Rights Code.

Chadha stressed to The Lawyer’s Daily that this area still requires a lot of “qualitative and quantitative research.”

She said the OHRC is still “looking into it,” focusing on the “scholarship around body-worn cameras, what is the policy development, and by that I also mean the technology development. What are the implications with respect to privacy, what is the implications with respect to due process and justice, being disclosure of the evidence, how the evidence is used?”

The OHRC’s annual report also highlighted its work addressing the impacts of the pandemic.

“We were the first human rights agency in the country to call out anti-Asian racism. We issued a statement last year back in January at the very outset of the pandemic,” Chadha said, adding that the OHRC tackled the pandemic with vigour.

“We tackled it from every end: from critical care triaging, to bioethics principles, to vaccine rollout. Our work on the vaccine distribution, I think, really helped from the outset to mitigate some of the significant disproportionalities and backlash that Indigenous communities would have experienced, but for the fact we went out full throttle to say ‘if you’re rolling out vaccines they have to be done in an equitable way with a view to what does this mean to Indigenous communities,’” she explained.

According to the OHRC’s annual report, the agency “released a Policy statement on a human rights-based approach to managing the COVID-19 pandemic” shortly after Ontario declared a state of emergency.

“The statement guides all levels of government to put human rights at the centre of their policy, legal, regulatory, public health and emergency-related responses to the pandemic. This policy statement called on governments to: approach preventing and treating COVID-19 as a human rights obligation; respect the rights of First Nations, Métis and Inuit (Indigenous) peoples; set strict limits on measures that infringe rights; protect vulnerable groups; respond to racism, ageism, ableism and other forms of discrimination; [and] strengthen human rights accountability and oversight,” the report explained.

The report breaks down the commission’s work on providing guidance for Ministry of Health regulatory changes; protecting individuals against the “discriminatory impact of critical care triage;” evictions; human rights in long-term care homes; working with Indigenous leaders and health-care professionals on vaccine issues; and advancing equitable vaccine distribution.

The OHRC advised Gen. Rick Hillier, chair of the vaccine distribution task force, that a “vaccine distribution strategy should be based on evidence of individuals’ increased risks of exposure, transmission or death rather than stereotypes; and should be framed in ways that avoid stigmatizing vulnerable groups.”

“The strategy,” the report noted, “should also include disaggregated data collection and monitoring to ensure Code-protected groups experience equitable access to vaccines and are not disproportionately affected, and should make adjustments and accommodations where needed, especially where evidence shows groups have historically unequal access to health services.”

The report also noted that “as vaccine rollout continues, the Chief Commissioner and OHRC staff have met several times with senior managers from the Ministry of the Solicitor General and the Anti-Racism Directorate, to provide further human rights advice on the rollout for vulnerable people.”

Chadha said the OHRC is “really thinking hard about recovery principles and what does ‘post-pandemic’ mean? How do we advocate for a human rights lens to recovery?”

“We can’t go back to what was,” she added. “We need to ensure that what ‘going forward’ looks like respects the dignity of every human being and making sure that identities of gender, race, sexual orientation, class, all of those intersecting things that compound disadvantage [are included]. How do we move forward in our new world so that we are not replicating exclusionary practices and harms?”

“That’s work that I would encourage all lawyers and paralegals in the province to look for. To engage with those principles, to use those principles as a driver for their work and for social change when they do their work,” she stressed.

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