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. Our website is http://www.tpac.ca
1. The Board’s shenanigans
When the agenda for the Toronto Police Services Board meeting of October 20 was posted on October 14, it was strange to see that it did not include any mention of the operating or capital budgets for 2017, nor was the chief’s report on conducted energy weapons listed as an item. The few members of public in attendance at the Board’s budget sub-committee consultation on October 11 were led to believe both items were to be on the October 20 agenda.
Board chair Andy Pringle later said it was a mistake to think the conducted energy report would be available for October 20 – it will appear in several months, apparently. The Board secretary said that the budgets would be discussed at the October 20 meeting even though they were not on the agenda – they would be `walk-on’ items, that is, they would be walked into the room when the meeting was in progress.
This is an astounding way to deal with a budget of just over $1 billion.
Walk-on items are matters of urgency that have arisen since public notification of the agenda. The reason for a public body publishing an agenda in advance of a meeting is so the public may have adequate notice of the business to be conducted. There is very little notice for walk-on items. Treating budgets this way is improper.
The police service often seems to behave as though laws, rules and procedures that apply to everyone else do not apply to its members. Filing important matters as late walk-ons is an example of the police service thinking those rules should not interfere with what it wants to do – and the Board is now the enabler of this false premise. It also occurred at the September meeting when the report on body worn cameras was filed as a walk-on item.
The Toronto Police Services Board exists to represent the public interest and provide good governance, not to be an enabler of improper activities by the police service. We have asked the Board to make a strong statement that it is there to serve the public interest, not just the interest of the police service, by requiring the service to adhere to normal procedures, on the budget and on other matters, but we are not holding our breath.
Perhaps because of our complaints, police staff released the report on the budget late on October 17. The report is basically a rewrite of what staff had said on October 11. And it is not a budget; it simply says how much the police which to spend but it does not indicate how that spending will happen. The process also cuts out public input. Our letter to the budget sub-committee (reproduced in Bulletin No. 99) and the other presentations on October 11 have not been forwarded with the walk-on material posted on October 17, so the full board is kept in the dark about what happened at the October 11 `consultation’ on the budget.
It is not as though the budgets are routine items. The capital budget proposes to spend $750,000 on conducted energy weapons, even though Board policy (established in 2013) is not to expand their use by Toronto police. It also proposes spending $500,000 to start implementing body worn cameras, even though the staff report on the pilot project shows there is no good reason to think they will improve policing in any manner, and the cost is very high. In both cases the money is being requested even though they have yet to be debated.
There is a serious governance problem with the Toronto Police Services Board. The Board is not up to the job of representing the public, let alone following reasonable procedures.
2. TPAC’s brief on police oversight
Justice Michael Tulloch has been appointed to review police oversight mechanisms in Ontario. He has held hearings in a number of communities, and the web site – policeoversightreview.ca – has a schedule of remaining hearings. He requests that briefs be filed by November 30.
TPAC’s brief argues that good oversight can only occur if there is good governance. It begins by commending to Justice Tulloch Kent Roach’s 2014 article, `Models of Civilian Police Review: The Objectives and Mechanisms of Legal and Political Regulation of the Police’ in the Criminal Law Quarterly, Vol 61, page 29. It touches on many of the critical issues which we hope the review will address.
Our brief continues:
Our experience is that many of those who deal with the OIPRD, the SIU and the OCPC come away deeply unhappy. They had hoped the agency would assist them after an unfortunate encounter with the police, but they often found that was not the case, and the agency seemed uninterested in their concerns or unable to find out what happened, and the sanctions imposed were entirely inappropriate. Accordingly, we believe a good place to begin is to study what complainants have to say about their impressions of the agencies. It would also make sense to look at whether the broader members of the public think the agencies play a useful role.
We recommend two sets of changes:
First, police service boards must be strengthened, legislatively and politically, so they are serious governing bodies, fully in control of the police force and its activities within their mandates. Boards must recognize their mandate to provide serious governance of an important government function.
Second, the oversight bodies should be restructured to better reflect their key functions. It probably makes sense to create one stronger body in place of the three, and ensure it has a strong and public board of directors.
Strengthening police service boards
Before considering the nature of an oversight body, it makes sense to reflect on the governance structure of the organization to be overseen. If there are problems with the governance body, they should be addressed, rather than expecting the oversight body to be stuck with them. This means that the place to begin oversight review in Ontario is with the police service board.
In Ontario, police service boards are generally weak governing bodies. Too often boards defer to the chief on matters of policy and discipline. They rarely defend the public interest, (witness the Toronto Board continually denying information to the Toronto Star when it sought carding data, requiring the newspaper to go to the Divisional Court on appeal to get this information.) They rarely speak out for the public interest, and they rarely put forward proposals for debate and action (witness the fact that few citizens are aware of board meetings, and that most meetings are very short, without debate.) In fact members of police boards seem to have become expert at deflecting public interest and rationalizing police actions. It often seems that boards serve the interests of the police officers rather than the public interest.
Thus, in the Toronto situation, the Board has never really been able to come to grips with police procedures to reduce harm to those in mental crisis; to control the number and frequency of strip searches; to establish reasonable recruitment procedures; and so forth. Worse, in the past decade they have not been willing to engage in meaningful debate to control police spending, nor have they used well-recognized management tools such as good analysis of numbers, management studies and reviews, alternative service delivery models, to improve policing.
The result of this weak governance is that police officers and the organizations speaking for them (police associations) generally can act in an unfettered manner in protecting their own interests. The result is a serious power imbalance, one that can never be completely addressed by any oversight body. It also means that police often feel free to disregard oversight bodies – as the Toronto chief and senior staff often refused to respond to letters from the head of the Special Investigations Unit. It often means that when a problem does arise, oversight bodies are never strong enough to respond appropriately, and some more powerful process must be established – such as the special review by Mr. Justice Morden into the G20 police actions, or the study by Frank Iacobucci into the killing of Sammy Yatim.
Thus we propose that as a first step, one must address the responsibilities of police service boards in Ontario to provide effective governance. This will require being very specific about what is expected, since the responsibilities currently set out in the Police Services Act are not extensive or inclusive, and very weak. Specifically, we believe the following duties and responsibilities of boards should be made explicit:
1. The duty to establish policies for the effective management and operation of the police service.
2. The responsibility to direct the chief of police and monitor his or her performance and compliance with operational policies
3. New duties in addition to those in Section 31 of the Police Services Act, including duties to:
(a) review and approve annual operating and capital budgets
(b) encourage community discussion of policing issues and lead public debate on policing issues and policies
(c) ensure active research on police activities and efficiencies
(d) regularly review the structure of the police force and the policies by which it operates
(e) ensure that before new technology is purchased or used by the police service that appropriate constraints are in place that the technology does not infringe on the Charter of Rights and Freedoms; and
(f) ensure the police service is pursuing its core services.
Currently the core police services as set out in Section 4 of the Police Services Act are muddled and do not reflect what officers actually do. To ensure that police service boards are governing effectively, those core police services should be better defined to be to:
1. Respond to, and investigate, in a timely fashion, violence, threats of violence and crime, criminal acts and public disorder
2. Undertake, with other social institutions and agencies and civil society organizations, steps to prevent violence, crime, and criminal behaviour including, where appropriate, diverting individuals from the criminal justice system
3. Co-ordinate activities with private security firms and other organizations within the security web, to create the most effective approach to a safer and more secure society.
4. Extend assistance to victims of crime
5. Protect and respect human rights and the rule of law.
Further, the Police Services Act should specifically state that a Board is responsible for operational policy and for ensuring that officers comply with those policies and perform their duties accordingly. It should be stated that the chief reports to and is subordinate to the Board but the Board shall not direct the chief of police with respect to specific operational decisions or with respect to the day-to-day operations of the police force.
As well, boards should be as transparent as possible in respect to the manner in which issues are dealt with and information is provided to the public. The Police Services Act should state that a Board will be transparent in respect to its activities and the information made available to it, recognizing the public’s right to know while protecting individuals who provide information and/or make complaints. Generally, the rules regarding the release of information by the Board and its members will be no different that rules which apply to a municipal council.
It may be that Board members should be compensated more appropriately for these clear and explicit duties.
Admittedly, substantial changes to police service boards are needed, but all are reasonable and in fact most people now expect boards to perform these functions, but since they are not clearly set out in legislation, boards rarely provide them. If the changes are not made, boards will not be effective governance bodies, and oversight bodies will always fail since they will be overseeing structures which are ineffective to begin with.
Providing effective oversight
Our second set of recommendations deal with the oversight functions themselves.
There are four bodies which now exercise oversight over boards and the officers working for those boards: the Office of the Independent Police Review Director (OIPRD); Special Investigations Unit (SIU); The Ontario Civilian Police Commission (OCPC); and coroner’s juries established to investigate a specific death involving police.
All are flawed, and we believe the public has little faith in any of them. While the OIPRD might receive about 3000 complaints a year, only a few dozen are deemed serious enough for the OIPRD to do its own investigation, and then it is unable to impose any penalty, but must refer the matter to the affected police force, which rarely takes the OIPRD’s recommendations seriously. The OIPRD rarely uses its powers of systemic review – it refused, for instance to do the requested review of racial discrimination in carding, when asked in 2010, claiming that the two persons asking for the systemic review were not the right colour and thus not `affected.’
The SIU only reviews police activity from the point of view of criminality, and thus exonerates police even when they have done something really really stupid – such driving without lights in a park at night and running over teenagers lying on the grass, or shooting and killing a clearly disturbed naked man running down the street at 10 am in the morning. When the SIU finds no basis for criminal charges, the police and the police services board usually conclude that police action was justified, so the SIU actions compound the problem. Further, many SIU investigators are former police officers, and members of the public have every reason to believe they are steeped in a police culture where former officers protect existing officers from criticism.
The OCPC is a very secretive body, refusing to provide basic information about matters with which it is dealing, such a Code of Conduct violations of Board members. It has little credibility with the public.
Coroner’s juries consist of citizens chosen because they know nothing special about policing, hardly a good recommendation for the task they have been given. They hear evidence presented adversarial style about the facts of a death and then arguments about causes and remedies; then they make recommendations which apparently are rarely followed by police forces. Thus for almost twenty years, since the death of Edmund Yu in a Toronto streetcar, such juries have been recommending that officers need better training to deal with those in mental crisis: the same recommendation made over and over again like a broken record yet the killings have not stopped. In respect to other deaths in Ontario, the provincial government has established panels of experts in Death Review Committees to ensure the same mistakes are not repeated, but that is not done in respect to deaths at the hands of police.
A good oversight body would have the following characteristics:
a) it could review any aspect of the work of the bodies being overseen, either on the basis of complaint or on its own initiative; and
b) its investigative staff would have the confidence of the public; and
c) it would have access to all relevant information and require the full co-operation of the body and its staff; and
d) it would be able to ask the body being overseen to address certain issues and report back quickly to it on how those issues have been resolved; and
e) it would make recommendations requiring the response of the body being overseen; and
f) if the body being overseen does not act reasonably on its recommendations, it would be in a position to impose a conclusion to the matter including policy and procedural changes, and the laying of charges.
We believe it makes sense to have one strong oversight body (rather than three) with these powers, adequately funded to act independently in the public interest.