Chapter 9 - Accountability and monitoring mechanisms: gaps in data management, performance review, and public transparency

 

As detailed in Chapter 8, it is critical that the TPSB and TPS have a clear and distinct policy and procedure on racial profiling. While this is an important step to fight discrimination, more is required. For policies and procedures to make real change, there must be strong accountability mechanisms in place to monitor and analyze their effect.

Accountability and monitoring mechanisms ensure that organizations effectively:

• collect objective data about their practices
• discuss and analyze the data in a transparent manner, and
• act in response to that analysis.

Data collection is a key component of an effective accountability system. The TPS must appropriately and effectively collect data related to racial profiling and discrimination from a variety of sources. The collection and resulting data must be transparent and available to the public.

Senior TPS officers and the TPSB must review and analyze the data to fulfill their supervisory and oversight functions. As reflected in our recommendations, there must be independent analysis and evaluation of the data to inform the TPS and TPSB about events, trends, and issues within the community and their impact on the effectiveness of police services.

Where the data indicate progress, the contributing factors should be recognized and applied more broadly. Similarly, where the data suggest concerns, the TPSB and TPS senior officers must respond quickly to address them and do so effectively.

Turning to accountability more broadly, when officers are found to have engaged in discriminatory behaviour (whether through data analysis or otherwise), there must be a consequence. If officers can engage in racial profiling and/or discrimination with impunity, then the policies and procedures are meaningless, and the relationship between the TPS and Black communities will not improve. The absence of appropriate discipline, when warranted, helps perpetuate patterns of racism and misconduct, and contributes to the mistrust of police among Black people.

The OHRC finds that there are significant gaps in the TPS and TPSB’s accountability mechanisms in relation to anti-Black racism, racial profiling, and racial discrimination.

 

Data collection systems

Prior to 2019, the TPS and TPSB did not implement data collection systems or compile or analyze existing data to identify, monitor, and address racial profiling or racial discrimination of Black people – despite many documented concerns about anti-Black racism and recommendations to collect race-based data.¹

In September 2019, after having conducted significant community engagement on race-based data collection, the TPSB adopted its Policy on Race-Based Data Collection, Analysis and Public Reporting (RBDC Policy). The policy requires the police to collect data on an individual’s race in a wide variety of interactions, including stops, questioning and searches, Use of Force Reports, and charges, arrests, and discrete interactions between an individual and an officer that lead to a “decision that determines an outcome for the individual.”²

On January 1, 2020, the TPS began collecting race-based data on Use of Force Reports and strip searches in line with Phase 1 of the RBDC Policy.³

On January 1, 2021, the TPS began collecting race-based data on arrests, apprehensions, releases and youth diversions under Phase 2 of the RBDC Policy.⁴

In June 2022, the TPS released its analysis on race, use of force, and strip searches.⁵

These are significant steps forward. However, some limitations in the TPS’s data collection need to be addressed. In particular, the scope of the Phase 2 data collection is too narrow.

 

Scope of Phase 2 data collection

As noted above, Phase 2 began in January 2021 with the collection of data in apprehensions, arrests, charges, releases, and youth diversion. However, Phase 2 does not include data collection for all stops,⁶ in particular:

• investigative detentions
• protective searches (formerly Level 1 searches),⁷ and
• frisk searches (formerly Level 2).⁸

Phase 2 data collection also does not include all use-of-force incidents. Specifically, it does not include use of force resulting in physical injury that does not require medical attention.

The OHRC notes that the TPS’s analysis of race-based data on use of force included “persons in crisis calls for service,” but does not appear to broadly capture whether the person involved had a noted history of mental health issues or was perceived to have a mental health disability.⁹

The community chairs of the Mental Health and Addictions Advisory Panel (MHAAP) suggested that race-based data be collected from crisis services providers from the Community Crisis Support Services Pilot. They also stressed the importance of collecting race-based and mental health data to examine intersectionalities (e.g., in conducted energy weapon use and Mental Health Act apprehensions).¹⁰

In September 2021, the TPS advised it was working on updating its systems’ capacity and resource workflow to collect stop data, including both traffic and pedestrian stops, and lower-level uses of force.¹¹ 

The scope of data collection should be expanded. The current scope is too narrow and does not address longstanding concerns about systemic anti-Black racism, racial profiling, and racial discrimination in all stops and all uses of force. Nor does it allow for sufficient monitoring and accountability.¹²

There must be human rights-based data collection, analysis, and public reporting on the full range of police–civilian interactions, including all stop and search activities, traffic and pedestrian stops that do not result in formal action, charges, arrests, releases, and use of force.¹³

This expansion is consistent with the intent of the TPSB’s RBDC Policy, and the Anti-Racism Act. It is also supported by the TPA465F¹⁴ and the Information and Privacy Commissioner (IPC).¹⁵

Race-based data should be collected when people are not charged, and where criminal incidents are “cleared otherwise” as defined in the Uniform Crime Reporting (UCR) Survey. “Cleared otherwise” means there was a criminal offence and a chargeable suspect, but the suspect was ultimately processed by other means. For example, the police may have decided not to charge, or diverted the case through an alternative mechanism, or charged under a regulatory statute instead of the Criminal Code.

Race-based data collection by the TPS on “cleared otherwise” cases will provide greater insight into the use of TPS discretion and how discretion is exercised.

This broader scope of data collection should be implemented not only by the TPS, but across Ontario. A province-wide approach to comprehensive data collection, analysis, and public reporting is important. Consistent with the OHRC’s Framework for change to address systemic racism in policing, the TPSB should urge the provincial government to mandate province-wide race-based data collection, analysis, and reporting across the spectrum of officer activities, including all stop and question practices, charges and arrests, and uses of force.¹⁶

For the OHRC’s recommendations for data collection, analysis, and public reporting, see Recommendations 52–60.

 

Early intervention systems and the use of race-based data for officer accountability

Early intervention systems (EIS) – also known as early warning systems – involve a data-driven management process. EIS allow supervisors to identify officers who engage in problematic behaviour, and to intervene through counselling, education, and additional training.

EIS have been identified as a positive strategy for reducing or preventing racial profiling, by using race-based data to alert supervisors to potential racial profiling and racial discrimination by individuals and platoons/units/divisions.

The idea behind EIS is that officers may not recognize problematic behaviour unless it is identified and brought to their attention by supervisors. Once identified, officers have the ability to improve their performance and correct the conscious or unconscious behaviour, such as racially biased traffic enforcement.¹⁷

EIS can review trends in officers, partnerships, units, and geographic areas to identify issues and inform improvements through policy changes, supervision, education and training, and accountability.¹⁸

EIS have been recommended as a promising practice by the International Association of Chiefs of Police, the U.S. Department of Justice, and many policing experts.470F¹⁹ In the United States, approximately 65% of police agencies with 250 or more officers had an EIS as of September 30, 2007.²⁰

 

The TPS and EIS

In 2013, the Police and Community Engagement Review (PACER Report)472F²¹ recommended the implementation of EIS related to bias and racial profiling.²²

The PACER Report also recommended that the TPS should:

Proactively design and conduct unit level reviews of performance trends and indicators that may relate to systemic and/or individual bias, prejudices and/or racial profiling. This may be accomplished by comparative analysis of Officers and unit performance. Recognizing such analysis does not in itself indicate bias-based policing, the trend indicator should be utilized as part of a more comprehensive analysis of the individual or unit level performance to ensure consistency with the unit and Service priorities.

The report further recommended that the TPS Professional Standards Unit “develop new risk thresholds specifically designed and implemented with respect to bias and racial profiling,” and “design and conduct reviews at both the Unit and Professional Standards Unit level, examining all ranks of the Service to proactively assess and address Officer performance trends and indicators that may relate to bias, prejudices and/or racial profiling.”²³

As of 2020, the development of new risk thresholds was still in progress,²⁴ and there appear to have been no further developments since that time.

The TPS previously implemented a limited form of EIS in 2008, which has since been updated and revised.²⁵ However, at time of writing, the EIS does not include race-based data.²⁶ The performance indicators do not appear to capture bias, prejudice, or racial profiling, but do include complaints.²⁷

In August 2020, the TPSB adopted the 81 recommendations from its report on Police Reform in Toronto: Systemic Racism, Alternative Community Safety and Crisis Response Models and Building New Confidence in Public Safety (Police Reform Report).²⁸

Recommendation 45 directed the Chief to report by November 2020 on:

1. How the TPS identifies police officers who are repeated subjects of conduct complaints or negative findings by the courts, or those who disproportionately use force, even where no specific instance amounts to allegations of misconduct;
2. How identified officers are monitored for compliance with TPS policy and procedure and receive additional training where necessary; and
3. How the TPS determines what other interventions are appropriate or required for officers that are identified as part of the service’s efforts as per a) and b).

On November 4, 2020, then-Interim Chief James Ramer presented his report to the TPSB. The report confirmed that the EIS performance indicators do not include indicators of racial discrimination or racial profiling by individual officers and platoons/units/divisions, and important and related indicators described in detail in the OHRC’s recommendations in this report.480F²⁹

It is imperative that the TPS fully adopt a comprehensive EIS that includes indicators of racial discrimination/profiling.

For the OHRC’s recommendations for effective EIS, see Recommendations 65, 66, 67, and 95.

 

EIS and officer discipline

Although not intended to be disciplinary, EIS do not preclude discipline for individuals' repeated negative behaviour. For example, the LAPD has disposition options for interventions that include no action, commendation, informal meeting, training, modified field duties, directed health and wellness referral, notice to correct, and a complaint.³⁰

Discussions at the OHRC policy roundtable also supported using race-based data for remedial or disciplinary purposes.³¹

TPS objections to the use of such data to investigate individual misconduct are not sustainable. On June 15, 2022, then-Interim Chief Ramer stated that the “privacy commission” and the Anti-Racism Act require that race-based data be anonymized and therefore prevent the TPS from investigating individual officer conduct.³² However, the IPC of Ontario stated:³³

Based on the information available to date, it is our view that neither the [Municipal Freedom of Information and Protection of Privacy Act] nor the [Anti-Racism Act] prevent police service boards or police services from using race-based data or employee information to supervise, discipline, train, or monitor police divisions.³⁴

Indeed, the Data Standards for the Identification and Monitoring of Systemic Racism created under the Anti-Racism Act specifically contemplates that the failure to monitor the impact of discretionary decision-making may itself constitute a form of systemic racism where it leads to significant racially inequitable outcomes.³⁵

However, the TPSB’s RBDC Policy prohibits race-based data from being used for performance management.³⁶ Therefore, the TPS and TPSB have been unable to effectively identify, monitor, or address racial profiling or racial discrimination by individual officers.

On June 22, 2022, the TPSB passed a motion:

1. Directing the Chief of Police to assess how the Service’s approach to race-based data collection and analysis can be modified to enhance the Service’s ability to identify, investigate and address specific instances of potential inequitable policing, including with respect to Use of Force, strip searches and other interactions, and to report back to the Board by Q4 2022 with the results of this assessment and any next steps, as well as areas for consultation with the Police and Community Engagement Review, other community stakeholders, and the Toronto Police Association; and
2. Directing the Executive Director and Office of the Police Services Board to undertake a review of the Board’s Race-Based Data Collection, Analysis and Public Reporting Policy, in consultation with the Board’s Anti-Racism Advisory Panel, key stakeholders and community partners, and to report back to the Board by Q2 2023 concerning any suggested revisions to the Policy, and in particular, revisions that relate to the Chief of Police’s assessment in item 1.³⁷

However, in his April 28, 2023 update to the TPSB on these and several other motions related to the RBDC Policy, Police Chief Myron Demkiw noted that “The challenge is that attempting to identify trends based on too little information (too few data points using the Use of Force report alone) is an unreliable means of indicating bias or … identifying a pattern of racism or racial bias.” He further stated:

The early risk intervention process involves identifying use of force trends that can be used to initiate a broader review, leveraging body-worn and in-car camera systems, notes, and other reports such as complaints data. As there are now mandatory reviews of this nature, the amount of information available about an incident is increasing. It is in this mandatory review that the appropriateness of the intervention and any indication of racism or bias can be determined. Conversation in the town halls centres on making the process more transparent and robust; ensuring events are captured; and on actions the Service should take in the event of an abuse of authority.³⁸

While mandatory reviews of body-worn and in-car camera systems, notes, and other reports such as complaints data are critical, it is not clear at this time how they will be incorporated as data that can be used in an EIS for performance management. Based on concerns that there are not enough data points in use-of-force reports, the EIS should incorporate indicators of racial discrimination or racial profiling by individual officers and platoons/units/divisions, and other related indicators, which are currently missing.

The April 28, 2023 update did not address the second item from the TPSB’s motion.

Issues with performance analysis and management of police services, including EIS, exist across Ontario, a fact appropriately recognized by the TPSB. On June 22, 2022, the TPSB passed a further motion to:

Request that the Ministry of the Solicitor General create a new Adequacy and Effectiveness Standard, under the Community Safety and Policing Act, 2019, that mandates a consistent approach to performance analysis and management of police services that is designed to identify inequitable policing, including in relation to Use of Force, and which includes an early-warning system [EIS] built to identify instances where systemic bias may be operating, and a requirement that supervisory staff take appropriate action.³⁹

The OHRC agrees that a province-wide approach to EIS informed by race-based data is required. Consistent with the OHRC’s Framework for change to address systemic racism in policing, the TPSB should urge the provincial government to mandate the implementation of EIS consistent with its recommendations.

In his April 28, 2023 update on this motion, Chief Demkiw stated that the TPS had “engaged with the Province to improve and introduce enhanced use-of-force reporting requirements that support identifying and addressing systemic patterns and trends to advance racial equity in policing.”⁴⁰ He also noted that the provincial government indicated its intention to convene a working group to develop an anti-racism strategy for policing in Ontario, which includes discussions of priority areas for race-based data collection and reporting.

In addition, following the implementation of the updated Use of Force Report, a Race-Based Data Working Group was formed by the Ontario Association of Chiefs of Police, and discussions around how the Ministry of the Solicitor General would be involved were ongoing.⁴¹

The OHRC looks forward to the results of the TPS’s engagement with the Province to improve and introduce enhanced reporting requirements that lead to a consistent province-wide approach to an EI system.

For the OHRC’s recommendations on the use of race-based data in EIS and officer discipline, see Recommendations 61, 68, and 69.

 

Body-worn cameras

Between February 2015 and March 2016, the TPS conducted a body-worn camera (BWC) pilot project.⁴²

On August 18, 2020, the TPSB approved a contract to roll out BWCs to all front-line officers. The TPSB directed the Chief to ensure that BWCs were not deployed fully to all front-line members until the Board approved a BWC policy and the relevant Service Procedures had been developed and/or amended to ensure consistency with the Board policy.⁴³

On November 24, 2020, the TPSB passed a Policy on Body Worn Cameras. The purpose of the policy includes enhancing the commitment to anti-racist, bias-free service delivery by the TPS. It also directs the Chief of Police to establish a framework for reviewing the recordings by supervisors on a regular basis to, among other things, identify and address evidence of explicit or implicit bias and discrimination.495F⁴⁴

By the end of 2021, 2,111 BWCs were deployed to front-line officers, which amounted to 92% of front-line officers.⁴⁵

In June 2022, the TPSB directed the Chief of Police to:

Implement mandatory reviews by supervisors of body-worn camera footage and in-car camera system footage for all Use of Force incidents, as contemplated by the new Service Procedure, and to initiate a disciplinary investigation where excess force is deemed to have potentially occurred.⁴⁶

On July 6, 2022, the TPS issued a Procedure 15-20, Body Worn Camera. It requires that supervisors review a video from each BWC-equipped police officer a minimum of once per month and conduct regular random reviews of videos to:

• Ensure officers are using the BWC in accordance with the law and BWC training;
• Determine if any additional training is required;
• Identify material that may be appropriate for training; and
• Comply with section 15 of the Board Policy on Body Worn Cameras.⁴⁷

Section 15 of the Board Policy on Body Worn Cameras states:

The Chief of Police, in consultation with the Information and Privacy Commissioner of Ontario and other relevant stakeholders, will develop Procedure(s) that:

15. Establish a framework for reviewing of recordings by supervisors on a regular basis to:

1. Ensure compliance with Procedures;
2. Identify and address evidence of explicit or implicit bias and discrimination; and
3. Determine the need for additional training or other measures.

The IPC’s BWC Model Governance Framework also supports regular (e.g., monthly and annual) and event-based audits of BWC records to assess compliance with all applicable laws, policies, procedures, and professional standards, including those related to discrimination and the use of force.⁴⁸

 

Concerns

The OHRC has maintained that BWCs can be an important tool for accountability, if their use is accompanied by robust procedures.

However, the OHRC has also heard the concerns raised by Black communities and others that BWCs do not capture a complete and accurate visual or audio record of what may have transpired in individual cases.

Recent studies have called into question the utility of BWCs because they often present only one perspective of an interaction or incident.⁴⁹ Specifically, BWCs record from the officer’s perspective, and officers have been trained to narrate events while they are being recorded, which can present a skewed version of events. For example, yelling at a suspect to “stop resisting” may mislead one to believe an individual was resisting when they were not.⁵⁰

We have also heard directly from Black people that BWCs will not prevent the deaths of Black persons by the police, and that more meaningful action is necessary.

Given the concerns, it is important that the use of BWCs be properly monitored and supervised. BWCs can be a helpful tool to learn about officer conduct and, where appropriate, enhance officer accountability for misconduct.

The OHRC recommends that supervisors review the BWC footage of all use-of-force incidents. In conducting these reviews, supervisors should consider additional information, including data from use-of-force reports (if completed), injury reports, subject and witness officer notes, and other relevant reports. The supervisor should also assess whether there was a credible, non-discriminatory explanation for the use of force.⁵¹

 

BWCs and the mug shot database

The OHRC is concerned about using footage from BWCs in conjunction with the TPS mug shot database and facial recognition technology. Its use in these circumstances could exacerbate existing racial disparities in the criminal justice system.

The Chief Information Officer of the TPS explained that the use of facial recognition together with BWCs is rare. He maintained that the combined use would only arise in circumstances where a crime was captured on a BWC, but the suspect was not captured or identified. In such circumstances, the footage from the BWC could be entered into the mug shot database to see if they could identify the suspect.⁵²

Although the combined use of BWC footage and the mug shot database may be rare, there must be a comprehensive consultation and study of the various human rights, due process, officer accountability, and public access and privacy implications of deploying these technologies together.

If the TPSB and TPS continue to allow BWC footage to be used in conjunction with the mug shot database, the OHRC supports the recommendation from the Canadian Civil Liberties Association (CCLA) that a dedicated consultation, privacy impact, and human rights impact assessment be undertaken.

Similarly, the IPC recommended that police services not adopt biometric technology (including facial recognition) in conjunction with BWCs until a full risk assessment is completed and the IPC is consulted.⁵³

For the OHRC’s recommendations regarding BWCs, see Recommendations 70 and 71.

 

Performance management systems, including supervision and discipline

The TPS currently uses the Uniform Performance Appraisal and Development Plan as its performance management system. Officers are assigned a rating by their next-level supervisor under several categories of evaluation, including:

• human rights
• personal qualities
• technical skills
• core competencies.

Former Deputy Chief responsible for Human Resources Command, Barbara McLean, stated that the next-level supervisor:

… reviews calls, work, [and] assess[es] things like complaints and training. A lot of it is observation, being around them in the workplace. That gets translated. So, there’s that assessment and room for comments by their supervisor. An active participation is what is expected from the supervisor.⁵⁴

Evaluation of the human rights category is unclear and limited. It includes whether the officer:

• has attended and/or completed human rights training as required
• shows knowledge and understanding of the Ontario Human Rights Code and human rights issues as they apply to policing
  
  • examples include but are not limited to knowledge of racial profiling, racial bias in policing, racism, sexual harassment, sexism, ageism), and
• delivers policing services in a fair, respectful, and unbiased manner.⁵⁵

Unfortunately, the TPS Uniform Performance Appraisal and Development Plan has not prevented systemic racial discrimination against Black people, as described throughout the Inquiry’s report. Indeed, under the TPSB’s RBDC Policy, race-based data are prohibited from being used for performance management.

The OHRC believes that the TPSB should immediately amend this policy to permit the use of race-based data in performance management. Similarly, the TPS should provide more explicit direction to supervisors on assessing compliance with anti-racism and anti-discrimination policies, procedures, and practices when evaluating officer performance.

In its 2020, Police Reform Report, the TPSB proposed changes to the performance management system. The TPSB directed the Chief to:

Develop and implement a formal annual performance review process for uniformed Service Members, in consultation with any relevant experts, that will assist in identifying the strengths and areas for improvement of each police officer, and which will include an individualized annual performance plan that identifies the education, training and experiences to be completed in the coming year in order to build on their identified strengths and address their identified areas for improvement.⁵⁶

However, the proposed changes do not provide specific guidance to address anti-Black racism, racial profiling, or racial discrimination.

The TPSB’s implementation dashboard for the recommendation does not describe how officers will be evaluated in relation to anti-Black racism, racial profiling, or racial discrimination. Nor does it indicate related qualitative or quantitative measures. The dashboard states that the new performance review process:

Provides performance evaluation to members based on the responsibilities of their roles and the competency behaviors tied to their level of leadership in the Service. Members will be required to examine the responsibilities of their roles and share:

• the “what” of what they delivered, and
• the manner in which they delivered it, the “how”.⁵⁷

Any new performance management system must include a meaningful review of officers’ performance in human rights, including anti-Black racism, racial profiling, or racial discrimination. An officer’s act of racial discrimination should be included in their evaluation and lead to progressive discipline, up to and including dismissal, where warranted.

Dr. Wortley stated, “any anti-racism policy is doomed to failure unless specific accountability mechanisms are put into place.” He encouraged specific disciplinary consequences for personnel found guilty of racial bias, and a policy that would hold supervisors accountable for the racially biased behaviour of those under their supervision.⁵⁸

This approach is broadly supported and has been endorsed by at least 22 community and advocacy groups.⁵⁹

For the OHRC’s recommendations on performance management, supervision and discipline, see Recommendations 74, 75, and 76.

 

Accountability mechanisms

Third-party findings

The OHRC identified eight Human Rights Tribunal of Ontario (HRTO) and court decisions between 2009 and 2017 that found that Black people were the victims of racial profiling or racial discrimination by TPS officers.⁶⁰ These cases involved multiple officers, and the misconduct included unnecessary stops, searches, charges, arrests, and the use of force. The HRTO and courts also found instances of biased and untrustworthy testimony from some of the officers.

This Inquiry revealed that none of the officers who were found to have engaged in racial profiling or discrimination by the HRTO were subjected to any formal discipline by the TPS. None were the subject of Notices of Hearing or brought before the TPS Disciplinary Tribunal under the Police Services Act.

 

TPS mechanisms to track cases

The OHRC asked the TPS why none of these cases was the subject of a Notice of Hearing or proceeded to a TPS Disciplinary Tribunal. The TPS advised that it could not provide an explanation for individual cases because of the statutory confidentiality provisions in the Police Services Act.⁶¹

However, the evidence examined by the OHRC demonstrated that the TPS has no formal mechanism to track, review, or act upon adverse findings of racial profiling and/or discrimination against officers by the HRTO or the courts.

 

TPSB mechanisms to track cases

The TPSB has a statutory responsibility to establish guidelines for dealing with complaints and to review the Chief’s administration of the complaints system. This includes internal complaints.⁶²

Notwithstanding this responsibility, it appears that like the TPS, the TPSB does not have any formal mechanism to track individual cases where racial profiling or discrimination is found, or how many TPS officers are disciplined for racial profiling or racial discrimination.⁶³ The TPSB advised the OHRC that it:

Does not have a system for monitoring every decision of the criminal courts, many of which are not reported, to identify cases where there have been findings of Charter violations by TPS officers.

However, the Board Office has established a system where reported decisions identifying issues of a systemic nature that involve the Board or the Service are identified and brought to the Board’s attention.

On occasion, a criminal decision involving the TPS will also come to the Board Office’s attention through legal counsel. These may include Charter breach cases. In most cases, these cases come to the Board’s attention because legal counsel has identified it as a decision that substantially alters the law of policing, could have impact on police governance or affect the public’s trust in policing. In such cases, the Board’s lawyers will bring the case to the attention of the Board’s Executive Director [and] Chief of Staff, and a report may be prepared for the Board where appropriate. In other circumstances, the Board’s Executive Director & Chief of Staff may raise the matter with the Chief or Chief’s Office for further exploration, and then, if appropriate, discussion with the Board.⁶⁴

The TPSB also advised the OHRC that it receives monthly reports from the Chief on officer discipline, which summarize the disposition of cases investigated and prosecuted under Part V of the Police Services Act, and “where particular systemic or other issues arise or are identified with the administration of the complaints system, the Board addresses them on a case-by-case basis.”⁶⁵

However, if cases are not investigated or prosecuted under the Police Services Act, they will not come to the attention of the TPSB.

To promote a service environment free of racial profiling and racial discrimination, the TPS and TPSB should take proactive steps to ensure officer accountability following decisions of the HRTO, courts or tribunals. Proactive steps should include an automatic investigation by Professional Standards when the HRTO or a court finds that an officer engaged in racial profiling or racial discrimination, regardless of whether the officer’s conduct was the subject of the litigation.

Where the investigation reveals racial profiling or discrimination, the TPS must ensure there are appropriate transparent and meaningful consequences consistent with progressive discipline, up to and including dismissal.

The TPS should:

• determine the race of the alleged victim in allegations of officer misconduct
• investigate potential racial profiling or discrimination in all allegations of officer misconduct that involve Black people as victims, and
• identify tribunal/court decisions with findings of racial profiling or discrimination by officers (whether or not the officer’s conduct was the subject of the litigation), and include them in an EIS and in performance management.

 

SIU investigations

SIU investigations are required whenever an officer is involved in an incident that results in death, serious bodily harm, or allegations of sexual assault.

When the SIU is notified of such an incident, the Chief of Police of the relevant police Service is also required to conduct an investigation. The purpose of the Chief’s investigation is to review the policies or services provided by the Service and the conduct of its police officers.

The SIU is required to report the result of its investigation to the Attorney General, and notify the Chief of Police that they have done so. The SIU letter to the Chief of Police usually identifies any concerns about the conduct of the officer(s).

Within 30 days of receiving the SIU letter, the Chief of Police is required to report the findings of its internal investigation and any action taken or recommended to the Board.⁶⁶

The OHRC identified 27 cases⁶⁷ where the SIU flagged problematic conduct in its letter to the Chief. None of them resulted in a hearing before the TPS Disciplinary Tribunal.

The OHRC is concerned by the lack of accountability where issues of potential misconduct are raised in SIU letters to the Chief. This is consistent with an observation by former TPSB Chair, Dr. Alok Mukherjee, in his book Excessive Force:

In reality, these reviews follow the letter rather than the spirit of the law. They are largely paper exercises involving the checking off of a bunch of boxes in a report to the board to say that the officer complied with policies, procedures and training; that the equipment used was also in compliance; and that there were no conduct issues. When the SIU says it had no reason or lack sufficient grounds to lay [criminal] charges, the Chief’s review invariably repeats that conclusion. To me, the review is a classic example of how the systems of accountability put in place by law are manipulated to protect police interest.⁶⁸

The absence of TPS Disciplinary Tribunal hearings where the SIU identified problematic behaviour is symptomatic of a larger problem. Police officers are rarely disciplined for misconduct. According to a report by the CBC, only 1% of complaints made to the Office of the Independent Police Review Director (OIPRD) about Toronto police officers between 2014 and 2019 has led to a disciplinary hearing.⁶⁹

The lack of transparency is also concerning in that the complaints investigated by the OIPRD and the TPS (internally) investigated appear to be resolved informally by the TPS, and remain confidential. As noted in the OHRC’s Framework for change to address systemic racism in policing:

The Police Services Act’s current confidentiality provisions prevent the public from knowing when and whether an officer was subject to some form of discipline for engaging in racial profiling, racial discrimination or other police misconduct. Only decisions from police service disciplinary tribunals are not confidential. This severely undermines public confidence in a system that must be transparent and grounded in the values espoused by the Human Rights Code.

The TPS must establish a process to fully investigate misconduct flagged by the SIU about racial profiling or racial discrimination. The TPS procedures should require the Chief or their designate to investigate each issue of problematic conduct the SIU Director raises in letters to the Chief. The Chief should report publicly to the TPSB on the findings and outcome of these investigations, subject to the confidentiality provisions of the Police Services Act.

The TPSB should also review the SIU letter and the findings of the Chief’s internal investigation. The TPSB acknowledged that comparing these reports would:

• assist in the Board’s oversight role
• allow the Board to ask questions where the SIU identifies potential misconduct
• allow the Board take appropriate policy action where potential systemic issues are identified.⁷⁰

In his interview with the OHRC, SIU Director Joseph Martino stated that these recommendations made sense and he did not take issue with them.⁷¹

For the OHRC’s recommendations regarding the SIU, see Recommendations 105, 106 and 107.

 

Tracking disciplinary decisions

The OHRC did not find any publicly available information on the number of officers disciplined for racial profiling, discrimination, or harassment as a result of a Police Services Act disciplinary hearing.

The OHRC asked the TPS for the relevant statistics. However, the TPS could not confirm whether, since 2010, the TPS Disciplinary Tribunal has found that any officers engaged in racial profiling, discrimination, or harassment. This suggests that the TPS does not track Disciplinary Tribunal findings for cases where officers have been found to have engaged in racial discrimination or racial profiling.

The TPS stated that it was unable to provide an answer on relevant statistics without reviewing all disciplinary tribunal decisions since 2010 and that it was unable to undertake the labour-intensive task of sorting, scanning and vetting TPS Disciplinary Tribunal decisions.  The TPS noted that the OHRC could make a request to the Tribunal Office for these decisions.⁷² The TPS also stated that the system for TPS complaints and reports of investigation is not designed to capture an individual’s specific race.⁷³

The TPS did confirm that from 2017 - 2020, there has only been one internal or public complaint alleging anti-Black racism in service delivery that the TPS has substantiated.⁷⁴

This low number is concerning because of the evidence of systemic anti-Black racism, racial profiling, and racial discrimination detailed in the Inquiry’s reports. This raises a real concern that incidents of anti-Black racism are not being captured and/or investigated by the TPS. 

For the OHRC’s recommendations on accountability, see Recommendations 76 and 77.

 

Transparency and accountability in discipline

Police services should promote greater accessibility and understanding of police discipline by routinely collecting and publishing information about allegations of police misconduct, the results of investigations into them, and disciplinary outcomes. This transparency is important for reassuring communities that the police are serious about investigating and punishing misconduct by their officers.⁷⁵

The OHRC joins community agencies and the IPC in their support for greater transparency by police services. During this Inquiry, the IPC advised the OHRC that:

Public trust in policing requires a strong commitment to transparency through … the proactive disclosure of de-identified information and other information capable of informing the public about critical police decisions, activities, and practices, including in relation to the effectiveness of oversight and disciplinary systems. Therefore, the IPC would welcome recommendations, including any necessary legislative amendments, to increase proactive disclosure of statistical, anonymized or de-identified data, as long as it does not involve personal information. Public reporting of this nature would support the public’s ability to hold police agencies to account by helping the public better understand how policing is being conducted and the extent to which reform efforts are progressing.⁷⁶

Notably, the lack of transparency in police discipline is not limited to the TPS. A province-wide approach to transparency in police discipline is an important requirement. Consistent with the OHRC’s Framework for change to address systemic racism in policing, the TPSB should urge the provincial government to amend the Police Services Act and/or the Community Safety and Policing Act, 2019 to include a requirement for greater transparency in police discipline.⁷⁷

For the OHRC’s recommendations regarding transparency, see Recommendations 72, 73, 78, 79 and 82.

 

Community oversight

Community can and should play an integral role in policing oversight, whether that comes in the form of consultations, ongoing working groups or committees, and/or integrated positions in policing services. However, this oversight must not be in name or appearance alone. Rather, community involvement in policing activities should carry weight, and community recommendations should be implemented and properly evaluated by an external party.

Community oversight should also be properly resourced so that community members are not expected or required to meet onerous time and work requirements without appropriate compensation.

 

Police and Community Engagement Review

In 2012, the TPS established the Police and Community Engagement Review (PACER) committee “to assess and address issues of racial profiling and bias in community engagements (at both the individual and systemic levels) to enable the delivery of bias-free police services.”⁷⁸

PACER’s vision was to establish the TPS as “a world leader in bias-free service delivery.” PACER’s work included a “comprehensive review of Service governance, business processes, and the culture of policing[,]” and resulted in 31 recommendations.⁷⁹

In 2013, the Committee released the PACER Report: Phase II – Internal Report & Recommendations, which recognized that:

To properly evaluate the success of the recommendations presented in this report requires a formal and impartial third party to design and oversee the evaluation project. The Key Performance Indicators (KPIs) of the evaluation must be filtered through an objective lens that ensures they accurately assess the outcomes of the recommendations.⁸⁰

In response to PACER, the TPS entered into partnership with the Center for Policing Equity (CPE) and Dr Phillip Goff to evaluate the implementation of the recommendations in the PACER Report. Dr. Goff’s final report was due on March 31, 2017. However, the evaluation was never completed. In its 2018 update on the PACER recommendations, the TPS stated that the CPE’s policy assessment is “ongoing.”⁸¹

The TPS advised the OHRC that they have not had contact with the CPE since January 2020, at which time CPE advised that there is no timeline for the completion of this report.⁸² In other words, there was no independent evaluation to determine whether the PACER recommendations were implemented and what if any change resulted from their implementation.

It is concerning that  implementation of some recommendations remain pending at time of writing this report – ten years following the release of the PACER Report. It is also concerning that  the TPS has failed to follow through with an independent evaluation of its implementation of the recommendations. This demonstrates a lack of accountability. As noted above, community involvement is an important part of policing, but only if it is taken seriously, and any resulting recommendations are implemented with external evaluation of progress and effectiveness.

 

Anti-Racism Advisory Panel

The Andrew Loku inquest jury recommended that the TPSB:

Establish a new committee to consider possible or identified disparities in services and outcomes for racialized persons and consider interventions to address any such disparities. The committee should include representatives of the Toronto Police Service, subject matter experts and members of racialized communities, including the Black community. The committee should consider the intersectionality of mental health and race both in terms of member composition and issues to be addressed.⁸³

In 2018, the TPSB formed the Anti-Racism Advisory Panel (ARAP) to advise the TPSB on its role in “overseeing and monitoring the response to and implementation of the recommendations directed both to the Toronto Police Service and to the Toronto Police Services Board, by the jury in the Inquest into the Death of Andrew Loku.”⁸⁴

The terms of reference for the ARAP were to establish a monitoring framework for the TPSB to use to assess the response to and implementation of the inquest recommendations, “including the creation of key benchmarks and performance indicators addressing each recommendation.”⁸⁵

The TPSB selected applicants with lived experience and a background in anti-racism, anti-Black racism, mental health and addictions, as well as people familiar with the issues raised at the Loku inquest.⁸⁶

On August 18, 2020, ARAP became a permanent advisory committee of the TPSB. Its role is to “advise and support the Board in relation to policing and racism, anti-Black racism and anti-Indigenous racism,” which includes:

• identifying current issues relating to racism, anti-Black racism, anti-Indigenous racism and policing, including developing and/or recommending policies, strategies, and action plans for approval by the TPSB
• monitoring the implementation of Toronto Council’s Action Plan to Confront Anti-Black Racism
• monitoring the implementation of the Board’s RBCD Policy, including reviewing the data analysis and any interventions developed by the TPS to address racial disparities for feedback and recommendations for enhancement
• monitoring the implementation of the recommendations from the Andrew Loku inquest through the monitoring framework previously developed by ARAP
• reviewing the development and implementation of all TPS training and offering recommendations for enhancement, including training on anti-racism
• monitoring the implementation of the 81 recommendations in the TPSB’s Police Reform Report.⁸⁷

ARAP was involved in a number of important issues, including assisting with drafting the RBDC Policy for the Board and the development of a framework to monitor the implementation of the Loku inquest recommendations.⁸⁸ The monitoring framework established performance targets and benchmarks that the TPSB and TPS could use to measure implementation of the Loku inquest recommendations, and hold themselves accountable.⁸⁹

ARAP did not review the “means of implementation” of the Loku recommendations. For example, ARAP did not review any training programs or procedures that were developed or revised in response to the jury recommendations.⁹⁰ Whether that was the result of a lack of resources or a narrow mandate, this is an important missed step in ensuring that the recommendations were effectively implemented.

Among other things, this highlights the need for ARAP to be empowered and resourced adequately, including compensating its members for their time and work similar to the civilian members of the TPSB. It also highlights the need for independent monitoring of the implementation of any recommendations. The OHRC recommends that the TPSB provide ARAP with additional resources to take on an expanded role that would include assisting with the implementation of the OHRC’s recommendations.

ARAP is a novel and commendable approach that brings together community members, academics, and police Service members to develop police governance policy. The OHRC also recognizes the important role that should be played by ARAP members in the robust approach to implementation discussed later in this chapter

For the OHRC’s recommendations on community oversight, see Recommendations 2, 3, 70(b), 85, and 86.

 

Independent monitoring and enforceability

For decades, members of Black communities in Toronto have raised alarms about anti-Black racism, both individual and systemic, within the TPS and the TPSB. Multiple reviews and reports have confirmed the existence of anti-Black racism, and recommended changes to TPSB policies and TPS practices and procedures to eliminate racial profiling and discrimination.

The TPS recently acknowledged the existence of anti-Black racism. This acknowledgement is an important and welcome development.

The TPS has also implemented some of the recommendations and made some improvements.

However, the required progress has been slow and insufficient.

The TPS and TPSB systems have not provided effective monitoring and accountability for anti-Black racism, racial profiling, and racial discrimination against Black people. There are few examples of officers being evaluated, investigated, or disciplined for racial profiling or discrimination. There has been structural impunity for systemic racism within the TPS and TPSB.

Not surprisingly, the outcomes for Black people have not changed.

The TPS and TPSB have demonstrated that they alone cannot assess, monitor, and change their systems to eliminate anti-Black racism, which is why the OHRC recommends that the Inquiry’s recommendations be independently monitored and legally binding.

Independent monitoring and effective and expeditious legally binding enforcement measures are necessary to help restore trust among Black communities. They provide communities with mechanisms for input, monitoring and transparency, and accountability.

Community stakeholders such as the Black Legal Action Centre (BLAC) and Canadian Association of Black Lawyers (CABL) support legally binding enforcement measures, given their concerns about the ability of the TPS and TPSB to address systemic racism using traditional measures such as non-binding recommendations, or directions from the TPSB.⁹¹

Similarly, the IPC recognized:

the importance of an approach to rights protection that, whenever possible, is informed by meaningful public engagement, supported by effective enforcement mechanisms, and capable of producing concrete results that can be assessed and verified by an independent and expert reviewer in a transparent manner. A commitment to such an approach by the Board and the Service could play a significant role in helping build citizen trust in policing.⁹²

Legally binding measures between parties can take various forms. In Ontario for example, the OHRC has previously entered into a model of enforcement, known as a consent order.⁹³ This is an agreement between parties, made legally binding by filing it with the HRTO. Recently the OHRC and the Peel Regional Police Service entered into a Memorandum of Understanding which built in an agreement to ultimately file a consent order with the HRTO.

Another model of legally binding enforcement is arbitration.  In the current context, this would involve an agreement in which disputes over implementation of the OHRC’s recommendations would be addressed through binding arbitration. This, too, can represent an alternative to potentially lengthy contested legal proceedings. This model gives the TPS, TPSB, and the OHRC input to select the final arbiter, which can facilitate the timeliness of resolutions to any matter in dispute.

The OHRC’s inquiry has confirmed that Black communities have little confidence in a process that does not result in accountability for the TPS and TPSB. Legally binding measures are an important step in building confidence in policing and promoting a fundamental shift in practices and culture.

For the OHRC’s recommendations on independent monitoring and enforceability, see Recommendations 1, 2, 4, 5, 50, 51, 85, and 86.

 

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Chapter 9 Endnotes

 

[1] See Appendix 6 – Historical timeline of racial profiling and racial discrimination of Black persons by the TPS, OHRC initiatives related to the TPS, and the OHRC’s work on racial discrimination in policing.

2 TPSB, Policy on Race-Based Data Collection, Analysis and Public Reporting (19 September 2019), online: https://www.tpsb.ca/policies-by-laws/board-policies/177-race-based-data-collection-analysis-and-public-reporting.

3 TPSB, “Minutes of Virtual Public Meeting: September 17, 2020” (17 September 2020), Report of Chief Ramer regarding “Toronto Police Service Board’s Race-based Data Collection, Analysis and Public Reporting Policy – Quarterly Progress Update on Implementation – Third Quarter” (6 August 2020) at 54, online (pdf): https://tpsb.ca/jdownloads-categories/send/32-agendas/635-setpember-17-2020-agenda.

4 TPSB, “Minutes of Virtual Public Meeting: June 24, 2021” (24 June 2021), Report of Chief Ramer regarding “Toronto Police Services Board’s Race-Based Data Collection (R.B.D.C.), Analysis and Public Reporting Policy – Progress Update on Implementation” (15 June 2021) at 260, online (pdf): https://tpsb.ca/jdownloads-categories/send/32-agendas/694-2021-06-24-agendaNULL; Letter from the TPS to the OHRC re OHRC Inquiry into Racial Profiling Benchmarking Data and Phase II Race Based Data Collection (8 September 2021); Toronto Police Service, Race & Identity Based Data Collection Strategy: Understanding Use of Force & Strip Searches in 2020 – Detailed Report (June 2022) at 10, online (pdf): www.tps.ca/media/filer_public/93/04/93040d36-3c23-494c-b88b-d60e3655e88b/98ccfdad-fe36-4ea5-a54c-d610a1c5a5a1.pdf.

5 TPS, Race & Identity Based Data Collection Strategy: Understanding Use of Force & Strip Searches in 2020 – Detailed Report (June 2022), online (pdf): www.tps.ca/media/filer_public/93/04/93040d36-3c23-494c-b88b-d60e3655e88b/98ccfdad-fe36-4ea5-a54c-d610a1c5a5a1.pdf.

6 Letter from Chief Commissioner Chadha to Chief Ramer re Toronto Police Service Consultation with the Ontario Human Rights Commission on Race-Based Data Collection (25 January 2021); TPSB, “Minutes of Virtual Pubic Meeting: June 24, 2021” (24 June 2021), Report of Chief Ramer regarding “Toronto Police Services Board’s Race-Based Data Collection (R.B.D.C.), Analysis and Public Reporting Policy – Progress Update on Implementation” (15 June 2021) at 260, online (pdf): https://tpsb.ca/jdownloads-categories/send/32-agendas/694-2021-06-24-agenda. See for example, TPSB, “Minutes of Virtual Public Meeting: September 17, 2020” (17 September 2020), Report of Chief Ramer regarding “Toronto Police Service Board’s Race-based Data Collection, Analysis and Public Reporting Policy – Quarterly Progress Update on Implementation – Third Quarter” (6 August 2020) at 54, online (pdf): https://tpsb.ca/jdownloads-categories/send/32-agendas/635-setpember-17-2020-agenda; Toronto Police Services Board, “Minutes of Virtual Public Meeting: December 15, 2020” (15 December 2020), Report of Chief Ramer regarding “Recommendation #73 – Status of Implementation of the Race-Based Data Collection, Analysis and Reporting Policy and Analysis of Gaps with the OHRC’s Recommendations” (3 November 2020), online (pdf): https://www.tpsb.ca/jdownloads-categories/send/32-agendas/653-december-15-2020-agenda.

7 A Protective search is “used generally during Investigative Detention and involves a limited search of a person who has been detained by policy when there is reasonable belief the person poses a safety risk. The scope of the search is limited to exterior patting of clothing such as pockets, waistband or areas that may reasonably conceal such items as weapons or implements that may be used as weapons, usually with open hands to maximize the ability to detect weapons through clothing. This search may also be described as a ‘safety search’, as that is the purpose and objective.” Toronto Police Service, Procedure 01-02 Search of Persons (24 November 2021), online (pdf): https://www.tps.ca/media/filer_public/a0/f9/a0f91c6c-e992-4036-badb-1f14fe1a6980/8e76ce5e-27b3-465d-b31a-60e580a1de8a.pdf.

8 A Frisk search is “used generally for Search Incident to Arrest and means a more-thorough search that may include emptying and searching pockets as well as removal of clothing, which does not expose a person’s undergarments, or the areas of the body normally covered by undergarments. The removal of clothing such as belts, footwear, socks, shoes, sweaters, extra layers of clothing, or the shirt of a male would all be included in a Frisk search. A Frisk search may be commenced in the field and concluded at the station.” Toronto Police Service, Procedure 01-02 Search of Persons (24 November 2021), online (pdf): https://www.tps.ca/media/filer_public/a0/f9/a0f91c6c-e992-4036-badb-1f14fe1a6980/8e76ce5e-27b3-465d-b31a-60e580a1de8a.pdf.

9 For example, see OHRC, A Disparate Impact: Second interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service, Use of Force by the Toronto Police Service Report (Toronto: OHRC, 2020) at 109-110, online (pdf): https://www.ohrc.on.ca/sites/default/files/Use%20of%20force%20by%20the%20TPS%20report%20%28updated%20January%202023%29.pdf; TPS, Race & Identity Based Data Collection Strategy: Understanding Use of Force & Strip Searches in 2020 – Detailed Report (June 2022), “Appendix A: Action Plan” at 92, online: www.tps.ca/media/filer_public/93/04/93040d36-3c23-494c-b88b-d60e3655e88b/98ccfdad-fe36-4ea5-a54c-d610a1c5a5a1.pdf.

10 OHRC interview of Steven Lurie and Jennifer Chambers (Community Co-Chairs of MHAAP) (9 June 2022).

11 Letter from the TPS to the OHRC re OHRC Inquiry into Racial Profiling Benchmarking Data and Phase II Race Based Data Collection (8 September 2021).

12 Letter from Chief Commissioner Chadha to Chief Ramer re Toronto Police Service Consultation with the Ontario Human Rights Commission on Race-Based Data Collection (25 January 2021).

13 For example, see U.S. Department of Justice Civil Rights Division, Investigation of the Ferguson Police Department (4 March 2015) at 91–92, online (pdf): https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf; Consent Decree between the United States (i.e. the DOJ) and the City of Ferguson (April 2016) at 102, 103, 108–115 online (pdf): https://www.justice.gov/d9/ferguson_consentdecree_4-19-16.pdf Consent Decree between the United States (i.e., the DOJ), the Mayor and City Council of Baltimore and the Police Department of Baltimore City (January 2017) at 28-30, 67 and 72–74 online (pdf): https://www.justice.gov/opa/file/925056/download

14 OHRC Roundtable interview with the TPA (10 November 2022).

15 Information and Privacy Commissioner of Ontario, “Additional comments and recommendations on the OHRC’s draft recommendations to eliminate racial profiling and racial discrimination of Black persons by the Toronto Police Service” (10 November 2022).

16 OHRC, Framework for change to address systemic racism in policing (29 July 2021) at number 2, online: www.ohrc.on.ca/en/framework-change-address-systemic-racism-policing.

17 Institute on Race and Justice, Northeastern University, Promoting Cooperative Strategies to Reduce Racial Profiling, COPS Evaluation Brief No 1 (Washington, D.C.: Office of Community Oriented Policing Services, U.S. Department of Justice, 2008) at 7, online: https://www.ojp.gov/ncjrs/virtual-library/abstracts/promoting-cooperative-strategies-reduce-racial-profiling.

18 Christi Guillon & William King, “Early intervention systems for police: a state-of-the-art review” (2020) 43:4 Policing: An Intl J 643 at 644.

19 Christi Guillon & William King, “Early intervention systems for police: a state-of-the-art review” (2020) 43:4 Policing: An Intl J 643 at 644.

20 Christi Guillon & William King, “Early intervention systems for police: a state-of-the-art review” (2020) 43:4 Policing: An Intl J 643 at 644.

21 For further information regarding the PACER Report, see Appendix 4.

22 TPS, The Police and Community Engagement Review (The PACER Report): Phase II – Internal Report & Recommendations (2013) at 56, online (pdf): https://tpsb.ca/The%20PACER%20Report.pdf.

23 TPS, The Police and Community Engagement Review (The PACER Report): Phase II – Internal Report & Recommendations (2013) at 57-58, online (pdf): https://tpsb.ca/The%20PACER%20Report.pdf.

24 TPSB, “Minutes of Virtual Public Meeting: November 24, 2020” (24 November 2020), Report from Chief Ramer regarding “Police Reform in Toronto: Toronto Police Service Initial Response” (12 November 2020), Appendix regarding recommendation #74 – PACER Report at 160, online (pdf): https://www.tpsb.ca/jdownloads-categories/send/32-agendas/650-november-24-2020-agenda.

25 Report from Chief James Ramer to TPSB, regarding “Recommendation 45 – Early Intervention Program” (4 November 2020), online (pdf): https://www.torontopolice.on.ca/tpsb-reform-implementation/docs/R45_-_Conduct_Early_Intervention_Reporting_-_Report_to_Board.pdf.

26 OHRC Interview with then Staff Superintendent Myron Demkiw (Corporate Risk Management) (6 July 2020). See Also, TPSB ”Minutes of Virtual Public Meeting: July 27, 2023” (July 27, 2023), Report from Chief Myron Demkiw regarding ”Report: Professionalism and Accountability ” (June 2023) at 173-174 online:  https://tpsb.ca/jdownloads-categories?task=download.send&id=795&catid=69&m=0  Note: There does not appear to be any inclusion of race-based data within an EIS in any document publicly available or made available to the OHRC

 

27 TPSB, “Minutes of Virtual Public Meeting: June 19, 2020” (19 June 2020), Corporate Risk Management Annual Report (2019) at 175, online (pdf): https://tpsb.ca/jdownloads-categories/send/32-agendas/628-june-19-2020-revised-agenda.

28 TPSB, “Minutes of Virtual Public Meeting: August 18, 2020” (18 August 2020), Report from Chair Jim Hart regarding Police Reform in Toronto: Systemic Racism, Alternative Community Safety and Crisis Response Models and Building New Confidence in Public Safety (10 August 2020) at 7, online (pdf): https://tpsb.ca/jdownloads-categories/send/32-agendas/631-august-18-2020-agenda.

29 Report from Chief James Ramer to TPSB, regarding “Recommendation 45 – Early Intervention Program” (4 November 2020), online (pdf): https://www.torontopolice.on.ca/tpsb-reform-implementation/docs/R45_-_Conduct_Early_Intervention_Reporting_-_Report_to_Board.pdf.

30 Christi Guillon & William King, “Early intervention systems for police: a state-of-the-art review” (2020) 43:4 Policing: An Intl J 643 at 647.

31 See Chapter 4 – Consultations: policy roundtable, officer survey and OHRC engagement with Black communities and community calls for “detasking, defunding and disarming.” 

32 Paola Loriggio, “Toronto police to look into whether race-based data could be used differently,” Toronto Star (22 June 2022), online: https://www.thestar.com/news/gta/2022/06/22/ontario-law-doesnt-prevent-police-from-using-race-based-data-to-assess-officers-ipc.html.

33 The Canadian Press, “Ontario law doesn’t prevent police from using race-based data to assess officers: IPC,” The Globe and Mail (22 June 2022), online: https://www.theglobeandmail.com/canada/toronto/article-ontario-law-doesnt-prevent-police-from-using-race-based-data-to-assess/.

34 Letter from Patricia Kosseim (Information and Privacy Commissioner of Ontario) to Patricia DeGuire (Chief Commissioner of the OHRC) – The Information and Privacy Commissioner of Ontario’s submission regarding the Ontario Human Rights Commission’s public inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (10 November 2022).

35 Ontario, Data Standards for the Identification and Monitoring of Systemic Racism – Context: Understanding racism and Standards for Participant Observer Information (POI) of race (guidance under standard #39); Anti-Racism Act, 2017, SO 2017, c 15, s 6(1); O Reg 267/18.

36 TPSB, Policy on Race-based Data Collection, Analysis and Public Reporting (19 September 2019), online: https://www.tpsb.ca/policies-by-laws/board-policies/177-race-based-data-collection-analysis-and-public-reporting.

37 TPSB, “Minutes of Public Meeting: June 22, 2022” (22 June 2022), Report from Chief James Ramer regarding “Toronto Police Service Board’s Race-Based Data Collection, Analysis and Public Reporting Policy – Phase 1 Report on Use of Force and Strip Search Data Analysis” at 312, online (pdf): https://tpsb.ca/jdownloads-categories?task=download.send&id=747&catid=62&m=0.

38 TPSB, “Minutes of Public Meeting: April 28, 2023” (28 April 2023), Report from Chief Myron Demkiw regarding “Toronto Police Service Board’s Race-Based Data Collection, Analysis and Public Reporting Policy – Update” at 188, online (pdf): https://tpsb.ca/jdownloads-categories?task=download.send&id=787&catid=69&m=0.

39 TPSB, “Minutes of Public Meeting: June 22, 2022” (22 June 2022), Report from Chief James Ramer regarding “Toronto Police Service Board’s Race-Based Data Collection, Analysis and Public Reporting Policy – Phase 1 Report on Use of Force and Strip Search Data Analysis” at 312, online (pdf): https://tpsb.ca/jdownloads-categories?task=download.send&id=747&catid=62&m=0.

40 TPSB, “Minutes of Public Meeting: April 28, 2023” (28 April 2023), Report from Chief Myron Demkiw regarding “Toronto Police Service Board’s Race-Based Data Collection, Analysis and Public Reporting Policy – Update” at 183, online (pdf): https://tpsb.ca/jdownloads-categories?task=download.send&id=787&catid=69&m=0.

41 TPSB, “Minutes of Public Meeting: April 28, 2023” (28 April 2023), Report from Chief Myron Demkiw regarding “Toronto Police Service Board’s Race-Based Data Collection, Analysis and Public Reporting Policy – Update” at 183—184, online (pdf): https://tpsb.ca/jdownloads-categories?task=download.send&id=787&catid=69&m=0.

42 TPS, Body-worn cameras: A report on the findings of the pilot project to test the value and feasibility of body-worn cameras for police officers in Toronto (2016).

43 TPSB, “Minutes of Virtual Public Meeting: August 18, 2020” (18 August 2020), Report from Chief Mark Saunders “Approval of Body Worn Camera (B.W.C.) Contract Award and Project Implementation” (29 July 2020) at 144, online (pdf): https://tpsb.ca/jdownloads-categories/send/32-agendas/631-august-18-2020-agenda.

44 TPSB, Policy on Body Worn Cameras (24 November 2020), online: https://www.tpsb.ca/policies-by-laws/board-policies/154-body-worn-cameras.

45 TPSB, “Minutes of Virtual Public Meeting: March 31, 2022” (31 March 2022), Report from Executive Director and Chief of Staff, Ryan Teschner regarding “The Board’s 2022-23 Business Plan” (10 March 2022), Appendix A, “A Time of Change: Toronto Police Services Board Business Plan 2022-23” at chapter 13, “Information Technology and Innovation – Key Projects” at 40—41, online(pdf): https://tpsb.ca/jdownloads-categories?task=download.send&id=721&catid=32&m=0.

46 TPSB, “Minutes of Public Meeting: June 22, 2022” (22 June 2022), Report from Chief James Ramer regarding “Toronto Police Service Board’s Race-Based Data Collection, Analysis and Public Reporting Policy – Phase 1 Report on Use of Force and Strip Search Data Analysis” at 312, online (pdf): https://tpsb.ca/jdownloads-categories?task=download.send&id=747&catid=62&m=0.

47 TPS, Procedure 15-20 Body Worn Camera (6 July 2022), online (pdf): https://www.tps.ca/media/filer_public/98/c8/98c8e176-4b51-4415-b55c-be3b8f7c853c/15-20_body-worn_camera_20220706_ext.pdf.

48 Information and Privacy Commissioner of Ontario, “Model Governance Framework for Police Body-worn Camera Programs in Ontario” (June 2021) at 17, online (pdf): www.ipc.on.ca/wp-content/uploads/2021/07/model-governance-framework-police-body-worn-camera-programs.pdf.

49 David Yokum, Anita Ravishankar & Alexander Coppock, “Evaluating the Effects of Police Body-Worn Cameras: A Randomized Controlled Trial” (20 October 2017), The Lab @ DC, online (pdf): https://bwc.thelab.dc.gov/TheLabDC_MPD_BWC_Working_Paper_10.20.17.pdf.

50 National Association of Criminal Defense Lawyers, “Policing Body Cameras: Policies and Procedures to Safeguard the Rights of the Accused” (2017) at 22–24, online (pdf): www.nacdl.org/getattachment/4163cc7b-1f4e-4e6c-9a60-a76794390d94/policing-body-cameras-policies-and-procedures-to-safeguard-the-rights-of-the-accused.pdf.

51 OHRC, “Letter to Toronto Police Service and Toronto Police Services Board on its policy and procedure on body-worn cameras” (28 October 2020), online: www.ohrc.on.ca/en/news_centre/letter-toronto-police-service-and-toronto-police-services-board-its-policy-and-procedure-body-worn#_edn1.

52 OHRC Interview with Colin Stairs (Chief Information Officer) and Ian Williams (Director of Information Management) (16 June 2022).

53 Information and Privacy Commissioner of Ontario, “Model Governance Framework for Police Body-worn Camera Programs in Ontario” (June 2021) at 1—2, online (pdf): www.ipc.on.ca/wp-content/uploads/2021/07/model-governance-framework-police-body-worn-camera-programs.pdf; Information and Privacy Commissioner of Ontario, “Additional comments and recommendations on the Ontario Human Rights Commission’s draft recommendations to eliminate racial profiling and racial discrimination of Black persons by the Toronto Police Service” (10 November 2022).

54 OHRC interview with Deputy Chief Barbara McLean (Human Resources Command) (12 March 2020)..

55 Toronto Police Service 809 Uniform Performance Appraisal and Development Plan, Rank: Constable (2018); OHRC interview with Deputy Chief Barbara McLean (Human Resources Command) (12 March 2020).

56 TPSB, “Minutes of Virtual Public Meeting: August 18, 2020” (18 August 2020), Report from Chair Jim Hart regarding “Police Reform in Toronto: Systemic Racism, Alternative Community Safety and Crisis Response Models and Building New Confidence in Public Safety (10 August 2020) at 46, online (pdf): https://tpsb.ca/jdownloads-categories/send/32-agendas/631-august-18-2020-agenda.

57 TPS, recommendation 46 completion report (13 January 2022) – Toronto Police Service Board Police Reform Implementation Dashboard (retrieved 27 October 2022) https://data.torontopolice.on.ca/pages/tpsbimplementation.

58 Scot Wortley, “Police Use of Force in Ontario: An Examination of Data from the Special Investigations Unit, Final Report” (2006) at 79–80, online (pdf): www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/policy_part/projects/pdf/AfricanCanadianClinicIpperwashProject_SIUStudybyScotWortley.pdf.

59 OHRC, “Submission to the Ministry of Community Safety and Correctional Services on the Strategy for a Safer Ontario” (29 April 2016), online: www.ohrc.on.ca/en/strategy-safer-ontario-%E2%80%93-ohrc-submission-mcscs.

60 Abbott v Toronto Police Services Board, 2009 HRTO 1909; Maynard v Toronto Police Services Board, 2012 HRTO 1220; Shaw v Phipps, 2012 ONCA 155; R v Ahmed, [2009] OJ No 5092 (ONSC); R v K(A), 2014 ONCJ 374; R v Smith, 2015 ONSC 3548.

61 Letter from the TPS to OHRC – Answers to follow-up requests and questions arising from OHRC interview of Superintendent Domenic Sinopoli (Professional Standards Unit) (3 June 2020); OHRC Interview of Peter Code (Staff Superintendent, Professional Standards Unit) (7 June 2022); Roberts v Toronto Police Services Board, 2016 HRTO 1464; Police Services Act, RSO 1990, c P15 at s 95:

   Confidentiality

   95 Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,

   (a) as may be required in connection with the administration of this Act and the regulations;

   (b) to his or her counsel;

   (c) as may be required for law enforcement purposes; or

   (d) with the consent of the person, if any, to whom the information relates.

62 Police Services Act, RSO 1990, c P15 at s 31(1)(i) and (j).

63 Responses of the TPSB to written questions at 78 and 81, asked under s. 31(7)(c) of the Human Rights Code, RSO 1990, c H19. Further, according to the TPSB, to the extent that the TPSB considers the specifics of a civil or criminal case, its discussions would be confidential due to solicitor-client privilege or the statutory confidentiality provisions of the Police Services Act, RSO 1990, c P15.

64 Responses of the TPSB to written questions at 84, asked under s. 31(7)(c) of the Human Rights Code, RSO 1990, c H19.

65 Responses of the TPSB to written questions at 78, asked under s. 31(7)(c) of the Human Rights Code, RSO 1990, c H19.

66 Section 11 of O Reg 267/10 under the Police Services Act states that the Chief of police shall cause an investigation into any incident where the SIU has been notified. O Reg 267/10 was revoked on December 1, 2020. The Special Investigations Act, 2019, SO 2019, c 1 Sch 5 and O Reg 268/10 came into effect on the same day. Section 32 of O Reg 268/10 states that the chief of police shall “cause an investigation to be conducted into any incident involving a police officer in the chief’s police force that becomes the subject of an investigation by the SIU Director[.]” The purposes of the investigation are the same as under O Reg 267/10.

⁶⁷ Between January 1, 2013 and June 30, 2017: see Appendix 5 – Methodology.

68 Alok Mukherjee with Tim Harper, Excessive Force: Toronto’s Fight to Reform City Policing (Madeira Park: Douglas & McIntrye, 2018) at 205–206.

69 Nicole Brockbank, “Only 1% of public complaints against Toronto Cops led to a disciplinary hearing in past 5 years“, CBC News (28 October 2020), online: www.cbc.ca/news/canada/toronto/public-complaints-police-disciplinary-hearings-1.5778459.

70 Responses of the Toronto Police Services Board to written questions at 99, asked under s. 31(7)(c) of the Human Rights Code, RSO 1990, c H19. Note that officer accountability for misconduct flagged by the SIU director does not appear to be addressed in the TPSB’s report on Police Reform in Toronto: Systemic Racism, Alternative Community Safety and Crisis Response Models and Building New Confidence in Public Safety found in: Toronto Police Services Board, “Minutes of Virtual Public Meeting: August 18, 2020” (18 August 2020) at 7, online (pdf): https://tpsb.ca/jdownloads-categories/send/32-agendas/631-august-18-2020-agenda.

71 OHRC interview of Joseph Martino (Director of the SIU) (26 May 2022).

72 Letter from the TPS to the OHRC – Answers to follow-up requests and questions arising from OHRC interview with Superintendent Domenic Sinopoli (Professional Standards Unit) (3 June 2020).

73 Letter from the TPS to the OHRC (15 June 2021).

74 Letter from TPS to the OHRC – Additional information arising from the OHRC interview with Deputy Chief Barbara McLean (Human Resources Command) (9 July 2020).

75 David H Bayley, Michael A Davis and Ronald L Davis, “New Perspectives in Policing – Race and Policing: An Agenda for Action” (Washington, DC: U.S. Department of Justice, National Institute of Justice, 2015) at 10, online (pdf): www.ncjrs.gov/pdffiles1/nij/248624.pdf.

76]Letter from Patricia Kosseim (Information and Privacy Commissioner of Ontario) to Patricia DeGuire (Chief Commissioner of the OHRC) – The Information and Privacy Commissioner of Ontario’s submission regarding the Ontario Human Rights Commission’s public inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (10 November 2022).

77 OHRC, Framework for change to address systemic racism in policing (29 July 2021) at number 7, online: www.ohrc.on.ca/en/framework-change-address-systemic-racism-policing.

⁷⁸ TPS, The Police and Community Engagement Review (The PACER Report): Phase II – Internal Report & Recommendations (2013) at 4–5, online (pdf): https://tpsb.ca/The%20PACER%20Report.pdf.

79 TPS, The Police and Community Engagement Review (The PACER Report): Phase II – Internal Report & Recommendations (2013) at 3–6, online (pdf): https://tpsb.ca/The%20PACER%20Report.pdf.NULL

80 TPS, The Police and Community Engagement Review (The PACER Report): Phase II – Internal Report & Recommendations (2013) at 80, online (pdf): https://tpsb.ca/The%20PACER%20Report.pdf.

81 TPS, PACER Recommendations Update (December 2018).

82 TPSB, Agenda for the Public Meeting of the Toronto Police Services Board (24 November 2020), at 195 states: "Note – 2018.05.18 was the last contact with the CPE until contacted by the PACER team on January 17, 2020, at which point CPE provided no timeline for completion of their report." Online: https://www.tpsb.ca/jdownloads-categories/send/32-agendas/650-november-24-2020-agenda

83 Office of the Chief Coroner, Jury Recommendations Inquest into the death of Andrew Loku (30 June 2017) at Recommendation 17.

84 Report from the ARAP Interim Steering Committee to the TPSB re ARAP – Recommendations of the Interim Steering Committee (5 April 2018); Toronto Police Services Board, “Minutes of Public Meeting: April 18, 2018” (18 April 2018), online (pdf): https://tpsb.ca/jdownloads-categories?task=download.send&id=588&catid=49&m=0.

85 Report from the ARAP Interim Steering Committee to the TPSB re ARAP – Recommendations of the Interim Steering Committee (5 April 2018); Toronto Police Services Board, “Minutes of Public Meeting: April 18, 2018” (18 April 2018), online (pdf): https://tpsb.ca/jdownloads-categories?task=download.send&id=588&catid=49&m=0.

86 Report from the ARAP Interim Steering Committee to the TPSB re ARAP – Recommendations of the Interim Steering Committee (5 April 2018); Toronto Police Services Board, “Minutes of Public Meeting: April 18, 2018” (18 April 2018), online (pdf): https://tpsb.ca/jdownloads-categories?task=download.send&id=588&catid=49&m=0; Report from the ARAP Interim Steering Committee to the TPSB re ARAP Membership (10 August 2018); “Minutes of Public Meeting: August 23, 2018” (23 August 2018), online (pdf): https://tpsb.ca/jdownloads-categories?task=download.send&id=598&catid=49&m=0.

87 TPSB, “Minutes of Virtual Public Meeting: August 18, 2020” (18 August 2020), regarding Police Reform Initiatives, online: https://tpsb.ca/jdownloads-categories/send/57-2020/634-august-18.

88 TPSB, “Anti-Racism Advisory Panel (ARAP)”, online: https://www.tpsb.ca/advisory-panels/24-panels-and-committees/94-arap.

89 OHRC interview with Uppala Chandrasekera (former member of the TPSB and former co-chair of ARAP) (1 October 2020).

90 OHRC interview of Uppala Chandrasekera (former member of the TPSB and former co-chair of ARAP) (1 October 2020).

91 Black Legal Action Centre, “Ontario Human Rights Commission’s releases report A Disparate Impact, the second interim report on racial profiling & racial discrimination of Black persons by the Toronto Police Service (TPS)” (11 August 2020), online: https://twitter.com/blac_ontario/status/1293173166035152898; Canadian Association of Black Lawyers, “Statement of the Canadian Association of Black Lawyers in response to A Disparate Impact, the Ontario Human Right Commission’s Second Interim Report on the Inquiry into Racial Profiling and Racial Discrimination of Black Persons by the Toronto Police Service, released on August 10, 2020” (19 August 2020), online (pdf): https://cabl.ca/wp-content/uploads/2020/08/CABL-response-to-OHRC-and-TPSB.pdf.

92 Information and Privacy Commissioner of Ontario, “Additional comments and recommendations on the Ontario Human Rights Commission’s draft recommendations to eliminate racial profiling and racial discrimination of Black persons by the Toronto Police Service” (10 November 2022).

⁹³ OHRC v Ontario (Community Safety and Correctional Services), 2018 HRTO 60.