Through various studies, investigations and litigation regarding racial profiling and policing in Ontario, the Ontario Human Rights Commission (“OHRC”) has recently released a framework for the Ontario government to address systemic racial discrimination.
As part of the proposed framework, the OHRC has focused on eliminating discriminatory practices from policing in Ontario.
For more than 30 years, the OHRC has examined and investigated issues surrounding systemic racism and policing in Ontario and published numerous articles and studies, which have been considered and cited by the courts in our province. The Supreme Court of Canada in 2019 cited the OHRC’s research when contemplating inconsistent policing in racialized communities in the case of R. v. Le. More recently in May of 2021, the Ontario Court of Appeal referred to the OHRC’s definition of “unconscious bias” when considering the relationship between police and the Black community.
RECOMMENDATIONS MADE BY THE OHRC TO ADDRESS SYSTEMIC RACISM
The OHRC, in consultation with experts and those in racialized communities, has suggested various steps to address systemic racism in Ontario to be addressed by the Ontario government. The following are a few examples of the recommendations made to the province by the OHRC.
Implement a Crown Pre-Charge Screening Process to Address Racial Profiling
One of the recommendations by the OHRC is that the province introduce a system that would allow for police to consult with prosecutors prior to charging suspects with a crime. Similar programs have been successfully implemented in British Columbia, Quebec and New Brunswick. The process would involve police officers investigating crimes and then forwarding their reports and recommended charges to Crown counsel who would decide whether to lay charges or initiate alternative measures.
It is well recognized that being charged with a crime and being kept in pre-trial custody causes negative outcomes such as job loss, legal expenses, diminished employment opportunities, interrupted education and reputational harm to those individuals. A pre-charge screening program as proposed by the OHRC could prevent charges that would later be dropped and mitigate the negative outcomes to those that are put through the criminal legal process.
Implement Appropriate Legislative and Regulatory Standards, Guidelines and Policies to Address and End Racial Profiling and Racial Discrimination in Policing
Racial profiling has been found to occur during police interactions at traffic stops, during searches, DNA sampling, arrests and in use of force incidents. The OHRC recommends that officer’s discretion to stop individuals in non-arrest scenarios be limited and street checks be prohibited. It is also recommended that police be cautious when using criminal profiling that includes race.
The OHRC further recommends that police services collect demographic data on all police interactions with civilians, including those of stop and question interactions across all of Ontario, and that data collection standards should be consistent.
Require Officers to Use De-escalation Techniques before Resorting to Use of Force
Another recommendation by the OHRC is the establishment of a use of force model that identifies de-escalation options and an emphasis that these attempts at de-escalation be made as a priority before any force is used. It is also recommended that officers provide a verbal warning before the use of deadly force and that they exhaust all reasonable alternatives. Also, it is suggested that officers be required to report attempted use of force and use of force threats and the de-escalation strategies that were attempted.
Facilitate Non-Police Responses to Issues of Mental Health, Substance Use and Homelessness
A non-police response to calls related to mental health, substance use or homelessness should be available across the province. This non-police response will de-escalate mental health or substance abuse emergencies. The police attendance at calls of this nature reinforces the mistaken belief that these individuals are violent, volatile or prone to criminal activity. Ontario should create a legislative framework and funding to allow for trained mental health professionals to respond to individuals in crisis and reduce discriminatory conditions.
Require Greater Transparency on Police Discipline
Current policing legislation prevents the disclosure of investigations and officer discipline outcomes. This current practice undermines public confidence in the police and therefore it is recommended that these practices become transparent.
Appropriate Discipline for those Police Officers that Violate the Human Rights Code
Police officers who do not suffer any consequences when their behaviour is contrary to the Human Rights Code diminishes the public’s confidence in their services. Appropriate discipline for those officers who have been found by the courts, human rights tribunals or other adjudicative bodies will assist to restore the public’s faith in the police in Ontario.
The Ministry of the Solicitor General in a statement to CBC News has stated that it is “carefully reviewing” the OHRC’s report and recommendations.
We will continue to follow the developments with respect to systemic racial discrimination in policing in Ontario and will report on any further information in this regard in this blog.
In the meantime, if you are facing criminal charges, contact the experienced and skilled Oshawa criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We take all steps needed to protect your best interests, both immediate and long term. For your convenience, we offer a 24-hour phone service and a free confidential consultation. Whatever the nature of your offence, we can help.