Police Accountability Bulletin: Carding, G20, tender bullets

John Sewell —

This bulletin is published by the Toronto Police Accountability Coalition (TPAC), a group of individuals and organizations in Toronto interested in police policies and procedures, and in making police more accountable to the community they are committed to serving.

1. The carding consultations

The Minister of Community Safety, Yasir Naqvi, has just completed a series of five meetings in different Ontario cities about a new policy for carding – the Ministry refers to the practise as street checks – in Ontario. The meetings began with this introduction by the Ministry.

“Street checks done properly are a necessary and valuable tool for police in their efforts to help communities remain safe and secure. They can help police understand community concerns and collect relevant information that may help solve and prevent crime. When done improperly, street checks can create harm and victimization for racialized individuals. Elements of discrimination, as well as random stops conducted without clearly articulated police purposes, have been associated with improper street checks.”

Many groups (including TPAC) challenged the notion that street checks could ever be done without violating people’s human rights. Apparently the Minister heard the objections clearly, particularly during a meeting with Knia Singh (who has filed a law suit against carding) and Howard Morton (of the Law Union), after a session in Scarborough. The Ministry then issued the following statement:

“There are two key principles that are driving Ontario’s approach to developing a new regulation:

1)  “We take the protection of human rights very seriously and have zero tolerance for racism or marginalization, including any form of discrimination based on skin colour, background, religion, sexual orientation or gender identity and gender expression; and

2)  “We stand opposed to arbitrary, random stops that do not have a clear policing purpose, and which are done solely for the purpose of collecting personal information.

“We have heard from the community that street checks by definition are arbitrary as well as discriminatory and therefore cannot be regulated – they must simply be ended. The province agrees that these types of stops must end.

“The outcome of these consultations will be a regulation that sets of fair, bias-free, and consistent rules requiring that police interactions with the public are justified, and that the information collected during these interactions is tied to a valid policing purpose. We believe that these new rules will ensure that all interactions are rights-based and consistent with the Canadian Charter of Rights and Freedoms as well as the Ontario Human Rights Code and are carried out in a way that promotes public confidence. The new regulation will also support the province’s police officers by providing them with clear rules to follow.”

This is a significant change, a very strong step forward. One often hopes that consultations will be effective, since too often those who arrange the consultations appear not to be listening, but in this case the Minister, who has been hands-on in this matter, was clearly listening.

The next step for the Ministry is to design the new regulations.

The New York City police force has been subject to a significant court process challenging its Stop-and-Frisk policy which is very similar to carding or street checks. (See Bulletin No. 73, January 2013)  A settlement has now been arrived at, setting out the kinds of stops an officer may make. It is found in the approved revision to the NYPD Patrol Guide 21-11 “Stop and Frisk”, and while it is not clear that this will be the basis of a new regulation in Ontario, it is clearly important. It is here set out in full, defining three levels of police/civilian encounters.

“INVESTIGATIVE ENCOUNTERS – in the context of this procedure, an investigative encounter is a police interaction with a member of the public/civilian for a law enforcement or investigative purpose. The New York State Court of Appeals in the People v. DeBour established the types or levels of such encounters and the authority of the police at each level, consistent with federal constitutional standards. These encounter levels and the authority of the police at each level are outlined in the definitions that follow.

“REQUEST FOR INFORMATION (LEVEL 1 ENCOUNTER) – A request for information is an encounter between a civilian and a uniform member of the service conducted for the purpose of requesting information from the civilian. The uniform member of the service must have an objective credible reason to approach the citizen. This type of encounter does not require any suspicion of criminal activity. The objective is to gather information and not to focus on the person as a potential suspect. A police officer may seek information related to the reason(s) the person was approached, such as the person’s name, address and destination if those questions are related to the objective credible reason for the approach. The officer may not ask accusatory questions. The person may refuse to answer questions and/or walk or even run away. Refusal to answer questions and/or walking or running away does not escalate the encounter. At this level, the officer may not’s seek consent to search, may not use force, and may not create a situation (either by words or actions) where a reasonable person would not feel free to leave.

“FOUNDED SUSPICION – Founded suspicion of criminal activity arises when there is some present indication of criminality based on observable conduct or reliable hearsay information.

“LEVEL 3 STOP (LEVEL 3 ENCOUNTER) – A Level 3 stop is any encounter between a civilian and a uniform member of the service in which a reasonable person would not feel free to disregard the officer and walk away. A Level 3 stop may take place even without the threat or use of physical force by the officer; whether an encounter amounts to a stop will be judged by the facts and circumstances of the encounter. A stop may be conducted only when a police officer has an individualized reasonable suspicion that the person stopped has committed, is committing, or is about to commit a felony or Penal Law misdemeanour. The police officer may ask questions and detain the person while an expeditious investigation is conducted to determine if there is probable cause to arrest the person. The police officer may seek consent to search. The consent must be voluntarily given. Reasonable force may be used to stop a person. The type and amount of force used must be objectively reasonable under the circumstances.

“REASONABLE SUSPICION – Reasonable suspicion exists when the information known to the member of the service would make an ordinarily prudent and cautious police officer under the circumstances believe criminal activity is at hand. The officer must have a particularized and objective basis for suspecting the person stopped of the criminal conduct. The officer must be able to articulate specific facts establishing justification for the stop; hunches or gut feelings are not sufficient.”

See http://ccrjustice.org/home/press-center/press-releases/stop-and-frisk-attorneys-welcome-court-approval-nypd-reforms

2. Police activity in the G20 still an issue

Toronto Police Service Superintendent Mark Fenton was convicted of unlawful arrest and discredible conduct for two incidents of kettling more than several hundred innocent people during the G20 summit in Toronto in June 2010. The judge hearing the charges said Fenton “demonstrated a lack of understanding of the right to protest.”  Charges against him related to the warehouse where more than 1000 were arrested and held and the charges later dropped, were dismissed. Fenton is the only senior officer charged in respect to the G20.

Toronto Star columnist Edward Keenan wrote on Aug. 26, 2015, a column summing up just how wrong-headed police actions were during the G20. He notes how most protesters were orderly and didn’t cause trouble, but one group labelled the Black Bloc, smashed windows and destroyed property. Then the police reacted.

“What most of us would hope would happen is that police would protect us from the vandals sowing the chaos — contain the violence, prevent major damage and arrest those responsible.

“What happened instead was that our police force turned on us: they disregarded the Charter of Rights, conducted unlawful searches, arrested many hundreds of law-abiding citizens who did nothing wrong on trumped-up charges, beat people up and masked their own identities while doing it, housed prisoners who were later released without charge in inhumane cages, and perpetrated what Ontario’s ombudsman found to be “the most massive compromise of civil liberties in Canadian history.””

See http://www.thestar.com/news/gta/2015/08/26/the-most-disturbing-thing-we-learned-from-the-g20-keenan.html

Former chief Bill Blair waded into the issue, with a column in the Globe and Mail on September 1. Blair is running for federal election in a Scarborough riding for the Liberal Party. The candidate for the Green Party in the riding, Tommy Taylor, was one of those arrested and imprisoned during the G20, and has raised Blair’s G20 role on many occasions.

Blair’s position is that none of what the police did in the G20 was his fault. He was just the chief of police, and virtually powerless.

He states near the beginning of the column, “It is a matter of public record that I appeared nowhere on the G20 organizational chart. I did not give, nor authorize, any operational commands.” He concludes, “As I said on May 18, 2012, “As the chief of police, I accept responsibility for the actions of the Toronto Police Service and its members.

“Where was I? I was doing my job as the chief of police to keep the public safe and to uphold the rule of law. I took responsibility, held myself and my people accountable and took the necessary action to serve the public interest.” http://www.theglobeandmail.com/globe-debate/i-never-wavered-from-myduty-to-keep-toronto-safe/article26167465/


3. Police Services Act consultations

Community Safety Minister Yasir Naqvi has announced his intention to review the Police Services Act, which he notes was last systemically reviewed 25 years ago. The announcement can be found at  http://news.ontario.ca/mcscs/en/2015/8/province-developing-a-new-strategy-for-a-safer-ontario.html

The terms of the consultation are not entirely clear, but a speech the Minister made in mid-August states it will include:  Improving frontline response to persons in mental crisis; Modernizing core police responsibilities; Enhancing Training Requirements; a responsible approach for the expanded use of technology; Strengthening the governance and oversight structure for policing;  Developing a provincial framework for First Nations policing; Outcome-Based Performance and Reporting Requirements to increase public transparency.

Changing legislation governing police is never easy, but this is probably a good time to try to make change. Citizen videos have discredited police explanations on many occasions, and those speaking for police have less credibility than in the past two decades. As well, the extraordinary benefits flowing to officers who have acted improperly – officer be suspended with pay for alleged wrong-doing even after conviction, but cannot be fired unless they are jailed – have seemed to many to be most unreasonable. And as we have seen with carding, the Minister seems to be listening.

4. The tender bullet scenario

Blunt Impact Weapon

Blunt Impact Weapon

Not happy with just having a taser as an alternative to a pistol, police forces (including Toronto) have begun to purchase what they refer to as “blunt-impact projectiles.”  They are large bullets encased in plastic: a 40 mm bullet containing gel and silicone. When released the bullet expands causing much pain to surface nerves but apparently not much internal damage.

Because the bullet is so large, a launcher is needed, much like for tear gas. The launcher is too heavy to carry on a belt, but must be stored in the police car. So far only the Emergency Task Force has them in Toronto.

Blunt Impact Round

Blunt Impact Round

Police claim that these weapons will decrease deaths, but what we know from research is that so-called “non lethal” weapons do kill some people. In addition, the number of shootings and injuries increase when police have these weapons.

Just imagine if the money spent on police weaponry was instead dedicated to making police respond, unarmed, in a reasonable fashion that de-escalates and defuses tense and volatile situations.

5. Not learning when police kill

Regulation 267/10 under the Police Services Act requires a chief of police to file with the police board his investigation of any incident for which the Special Investigations Units is called. The regulation says those reports can be made available to the public.

We asked the Toronto Police Services Board chair in September 2013 for the reports by Chief Bill Blair on the incidents where four individuals in mental crisis had been killed by Toronto police since the regulation was introduced in 2010: Reyal Jardine-Douglas, Sylvia Klibingaitis, Michael Eligon, and Charles McGillvary. We wanted to find out what the police chief thought the police force had learned from each incident. Our request was met that we should file a Freedom of Information request to get the  appropriate information.

A Freedom of Information Request was duly filed and then denied since it was claimed we were asking for the `substance of deliberations of a private meeting,’ which is one ground for not disclosing information. We made it clear we didn’t want to learn about any discussion, just the report showing what the chief said about the incident. That clarification got nowhere so we appealed the refusal to the Information and Privacy Commissioner of the Province.

On appeal, we made it clear that we had no interest in learning about the officers involved, but only in “whether anything was learned by the police force, as represented by the chief, from the deaths of these individuals which would influence the actions of officers in the future.”

Then followed a mediation by the IPC and consideration by an adjudicator. At the end of June 2015, an order of the adjudicator finally was issued. The adjudicator notes that he actually got to look at the full reports of the chief, and he concludes: “On my review of this information, I am satisfied that these portions of the records are not responsive to the appellant’s request for information reflecting an analysis of the events which would inform the actions of other officers involved in similar incident in the future.”

It is easy to understand that Chief Blair wasn’t much interested in learning anything from these tragic events. If he was, he would have changed operational policy which was something he had no interest in doing. But it is not easy to understand why the Board did not demand reports to attempt to lessen such incidents in the future. Maybe the fact that it didn’t want to learn from the past was the reason it would not agree to release the reports.

But at least we can be prepared for the next time someone in mental crisis is killed by police. We can demand that the mandatory report required from the chief under Regulation 267/10 included lessons learned. Perhaps that’s a good starting point for requiring police responsibility after the killing in early July of Andrew Loku, a resident of an apartment building where individuals with mental crises lived.

6. Province reduces TAVIS funding to Toronto

Complaints about TAVIS – the strategy where officers flood a community, stopping and questioning anyone who is there – have been loud for several years, and it appears the provincial government has finally heard them. The Ministry of Community Safety announced it was reducing TAVIS funding to Toronto from $5 million a year to $2.6 million, and that in the near future that funding will be cut altogether.

The Ministry’s statement says “We believe that the best way to prevent crime and keep our communities safe is to work with local groups and prioritize community-based crime prevention and youth engagement.”

It continued,  “We are also working with our municipal and policing partners to develop a new funding model that will end specific grant programs like TAVIS and develop a proactive, collaborative, and community-based model of policing where police services work with community groups to develop and support programs that proactively address local priorities in a way that work on the ground within our communities.”

Instead, funding is going into programs such as the Enhanced Youth Action Plan, for which  $4.3 million is allocated to the GTA this year alone, “to address the root causes of youth violence and focuses on closing gaps in services for the city’s most at-risk youth.”

A new regime apparently is being established by the province. The Ministry’s announcement concluded, “Our goal is to help local police services be more proactive, and work more collaboratively with other health, education, and social service partners to direct funding and resources to address specific issues in their communities, such as youth crime, and better align and integrate our new grant program with other provincial programs such as the Enhanced Youth Action Plan and the Poverty Reduction Strategy.”

Police Accountability Bulletin is published by the Toronto Police Accountability Coalition (TPAC). Our website is http://www.tpac.ca