The framework, released July 29, has 10 steps and calls on the province to “establish a legislative and regulatory framework to directly address systemic racism in policing.”
Ena Chadha, outgoing Ontario Human Rights Commission chief commissioner
“This would be inconsistent with the discriminatory experiences reported by Indigenous, Black and other racialized communities in all corners of Ontario,” the OHRC explained in its framework.
Chadha told The Lawyer’s Daily that the framework is a “culmination of many years of in-depth examination of the issue of systemic discrimination.”
“All of it speaks to criminal justice and justice, from the Crown pre-charge screening process which addresses over charging and racial profiling, to the examination of student resource officers, to the desperately needed amendments to the Mental Health Act, to the issues of independent investigation of police complaints. Every element, measure, concrete step, is geared towards targeting conditions and structures that underline our provincial system of policing,” she said.
Each measure in the framework “tells a story,” Chadha explained, noting that each one “arises from a set of circumstances and conditions that we’ve studied.”
For example, she noted that the Crown Prosecution Manual amendments that the framework calls for are based on the OHRC’s report, A Disparate Impact, which found that “Black communities, although they represent little under nine per cent of Toronto’s population, [represent] almost 40 per cent of arrests where there are 10 or more charges.”
“What we know when we study that data is many of those charges are dismissed or withdrawn, indicative of the fact that they are low quality, poorly formulated charges,” said Chadha.
“We also know,” she added, “that in provinces that use pre-charge screening, such as B.C., Quebec and New Brunswick, there are much lower rates of stayed or withdrawn charges.”
Chadha believes Ontario needs to examine charging practices and that one way to tackle racial disparities “is to implement Crown pre-charge screening processes.”
The framework’s recommendation on pre-charge screening notes that an “examination of the Crown policy manuals in provinces with pre-charge screening confirms that these systems can support initiatives to address systemic discrimination in the criminal justice system.”
“For example, in British Columbia, the Crown pre-charge screening process uses a two-part test to determine if charges should proceed. At the first stage, the evidentiary test considers whether there is a substantial likelihood of conviction. If the first part of the test is satisfied, Crown counsel apply the public interest test. Factors that weigh in favour of not prosecuting an individual under the second stage include the over-representation of Indigenous persons as accused within the criminal justice system, and the role that bias, racism or systemic discrimination played in bringing the person into contact with the criminal justice system. Factors that weigh in favour of laying a charge include the over-representation of Indigenous women and girls as victims of violent offences,” the recommendation explained.
The framework also recommends amending the “Ontario Use of Force Model so that officers are required to use de-escalation techniques and tactics, whenever possible, before resorting to use of force,” amending the “Police Services Act and/or the Community Safety and Policing Act, 2019, so there is greater transparency on police discipline,” as well as amending the Special Investigations Unit Act, 2019 to “allow police services to share information with the public while an SIU investigation is ongoing.”
Chadha is passionate about the framework’s recommendation to amend s. 17 of the Mental Health Act to “facilitate non-police responses to issues related to mental health, substance use or homelessness.”
Chadha stressed that Ontario needs “systemic, comprehensive and holistic provincewide change.”
“I’ve said to government, I’ve said to policing stakeholders and policing leadership, this important societal work can no longer sit with individual police services. We can’t continue, especially in the mental health area, with patchwork programs. We need a provincewide initiative to address mental health crisis where families don’t have only 911 as their resource,” she said, noting that families often call 911 for “mental health interventions with the hope that somebody can help them calm down an agitated family member.”
“That doesn’t mean we need to deploy armed, uniformed officers with blaring sirens and lights. That is counterproductive. It’s highly dysfunctional. There’s a disconnect between the need and the service delivery. That’s not the police officer’s fault, that’s not the [police] service’s fault, the fault lies in the system,” she stressed, adding this is not casting blame on any one particular police chief or area of the province, but there needs to be “system change or organizational change.”
The chief commissioner also noted that the recommendation to amend the Special Investigations Unit Act for greater disclosure “is critical for bolstering community trust.”
“Right now, we know that community trust has been decimated. … I’m not pointing at one police service. I think geopolitically, we understand that [there’s] little to no police trust within racialized communities,” she said, adding that the OHRC’s reports show that racialized communities, “particularly Black people, are subject to gross disparities when it comes to use of force.”
“The current legislation prevents the public from understanding what’s going on. People don’t understand the SIU mandate and what can be released and what can’t be released, and why some services give statements, and some don’t. So, we’re looking for greater legitimacy in SIU investigations through transparency,” she explained, noting that “in order to rebuild public confidence and trust, we need to take down this barrier of secrecy.”
Chadha stressed that the OHRC has “reached out and obtained policing stakeholder input.” She noted that the intention of the framework “is supported by the senior leadership of policing across the province,” and drew attention to a statement released by the Ontario Association of Chiefs of Police (OACP) on the matter.
“As Ontario’s police leaders, the OACP supports the Framework’s goal of fostering a collaborative approach to ensuring systemic changes within policing,” the association’s statement said.
“While these 10 actions will require an ongoing dialogue with the OHRC, the OACP believes the framework offers a positive starting point for the needed discussions among government, policing, and other stakeholders who share the common goal of positive changes within policing that advances the elimination of systemic discrimination within our profession,” the statement, released July 29, added.
Chadha believes lawyers are “uniquely situated to expose the systemic racism in the system.”
“It’s a part of their job to bring to light when, for example, their client has been subject to low level use of force as opposed to brushing it off. When your client says ‘the cop bashed my head when he was putting me in the cruiser,’ that needs to be documented, that needs to be spoken to, that needs to be looked at through a race lens,” she said, adding that lawyers can be the best advocates for the OHRC and support its call for the pre-charge screening.
“I think each one of these recommendations create a responsibility on legal counsel to look at ways that they can incorporate these suggestions in how they practise, how they advocate and the submissions they make in court and the submissions they make to government,” she explained.
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