Toronto Police Accountability Bulletin No. 67, April 12, 2012.

April 15th 2012

1. The Police Board moves to control racial profiling
2. The letter carrier and the police officer
3. Police and those on mental crisis
4. Editorializing about police funding
5. Strip search class action in British Columbia

Toronto Police Accountability Bulletin No. 67, April 12, 2012.

This Bulletin is published by the Toronto Police Accountability Coalition, 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
In this issue:
1. The Police Board moves to control racial profiling
2. The letter carrier and the police officer
3. Police and those in mental crisis
4. Editorializing about police funding
5. Strip search class action in British Columbia
6. Subscribe to the Bulletin
1. The Police Board moves to control racial profiling.

On March 10, the Toronto Star published a major investigative article reporting on the data on some 1.25 million cards recording police stops from 2008 to mid-2011.
(See http://www.thestar.com/news/insight/article/1143536--known-to-police-toronto-police-stop-and-document-black-and-brown-people-far-more .)

While blacks account for 8.3 per cent of Torontos population, 23.4 per cent of the cards were for people identified as black. The data shows there were 11 patrol areas where blacks were more than five times as likely as whites to be stopped by police; 31 areas where they were three to five times as likely to be stopped, and 24 where they were two to three times as likely. There were no patrol areas where blacks were less likely to be stopped by police as whites.

For young black men aged 15  24, the data are even more stunning. The number of black youth stopped by police is 3.4 times larger than the total number of black youth living in Toronto. For brown youth the number of stops is 1.83 times the number of brown youth living in Toronto. The number of white youths stopped is about equal to the total number of white youths living in Toronto.

This data generally confirm studies of carding data published by the Star in 2010 and 2007, showing that police behaviour in regard to who they stop has been the same for at least the past decade.

In response to the recent articles, Police Board chair Alok Mukherjee indicated his concerns and proposed that the city Auditor `conduct a project to collect and analyze data related to such contacts between the police and the community and to report by December 2013.

This matter was considered at the Board meeting on April 5. TPAC filed a brief and spoke, as did others. The Provincial Advocate for Children and Youth filed a letter supporting the TPAC brief, noting that racialized young people have often spoken about being unfairly labeled by police. Frontline Partners with Youth Networks noted that The struggle to develop positive relationships between law enforcement and racialized young people has been a point of contention for decades, marred by inequalities in power and complicated by poverty. Justice for Children and Youth stated The weight of surveillance on our youth is crushing. Its hard to hear the pain, anger, and sounds of hopelessness in the voices of youth that are being stopped daily, sometimes questioned, sometimes searched, sometimes physically hurt.

Nigel Barriffe presented on behalf of the Urban Alliance for Race Relations, giving several examples of problems experienced by his Grade 5 students in Rexdale at the hands of police. Noa Mendelsohn Aviv spoke for the Canadian Civil Liberties Association, noting that what is at issue for black male youth is not just the recording of their names and identifies. It is also unwarranted police stops which in and of themselves violate the privacy, autonomy and dignity of the young people involved. Reuben Abib spoke for the Black Action Defence Committee, asking that carding be stopped as it is de-humanizing, and degrading and is in contravention of our Charter and human rights. Moya Teku spoke on behalf of the African Canadian Legal Clinic, endorsing TPACs request that those stopped be given a carbon copy of the card completed by the officer, and asking for strong action to prevent profiling.

The Board responded positively to the briefs. Chair Mukherjee noted the sense of urgency, and said if there was a pattern in police behaviour it is contrary to the Boards goals and intentions. Councillor Michael Thompson moved the key motions, noting he had been informed by TPACs brief and that he had talked to other board members about these recommendations. He moved that:

1) Police must give a carbon copy of the carding information to those stopped;
2) The chief should report to the Board on carding activity on a quarterly basis;
3) The chief should involve the Diversity Management Unit in monitoring carding and addressing discrimination where it seems to be occurring; and
4) The chief should report in six months on the implementation of these recommendations.

Chief Blair said he had a problem with providing a carbon copy, since the information was collected electronically. Further he said the Diversity Management Unit did not have the capability to perform the monitoring requested. He did not object to the direction of Councillor Thompsons motions, but said he would report in three months on how these objectives could be achieved. Councillor Thompson amended his motions to reflect this three month delay.

Councillor Thompsons motions were adopted unanimously without discussion (with the chief reporting as noted in three months) as was the chairs proposal to have the city auditor to consult with the chief and interested parties and then report on the Star data before the end of 2013.

It felt as though a corner had been turned. One hopes that when the chief reports on how giving those stopped a copy of the information collected, and how and by whom cards will be monitored to ensure that intervention can occur when discriminatory patterns are evident, that perception will be confirmed.

2. The letter carrier and the police officer

Letter carrier Ronald Phipps was hard at work in 2005, delivering mail to houses on a route in the Bridal Path, one of the wealthier enclaves in Toronto, when he was stopped by police officer Michael Shaw. Shaw was suspicious of Phipps, and thought his Canada Post uniform and satchel might have been a disguise. He was looking for a white man apparently cutting phone lines in the area, and had his suspicions that Phipps might be the suspect.

Shaw questioned a homeowner who had been seen talking to Phipps  the homeowner said Phipps was asking about mis-directed mail  but that just confirmed Shaws suspicions. He then stopped Phipps, asked for postal identification and then ran his name through the Canadian Police Information computer system, looking for a criminal link. Later, Shaw asked another letter carrier about Phippss bona fides.

Phipps is black, and he filed a complaint with the Ontario Human Rights Tribunal. The Adjudicator concluded that Phipps had established discrimination since he satisfied the court that his colour was probably a factor, a significant factor, and probably the predominant factor in Shaws actions towards him.

The police force (including the chief and the Board) appealed the decision to the Divisional Court, which confirmed the finding of discrimination. They then appealed further to the Court of Appeal.

The police argued that no intent to discriminate was proven. The Court of Appeal replied that ` proof of Constable Shaws subjective intention to discriminate is not a necessary component of the test. There is seldom direct evidence of a subjective intention to discriminate, because [r]acial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices and racial discrimination often operates on an unconscious level. For this reason, discrimination is often proven by circumstantial evidence and inference.

The police had argued before the adjudicator that the discrimination test should be different when it involves allegations against police officers, requiring a higher burden of proof. The Court of Appeal agreed with the adjudicator that officers have a statutory duty to uphold the Human Rights Code while performing their policing duties. In short, officers cant argue that policing duties trump the laws prohibiting discrimination.

The case is Shaw v. Phipps, 2012 ONCA 155.

Phipps still works for Canada Post, but he hasnt returned to the Bridle Path during the last seven year as this case has made its way through the courts, for fear of coming into conflict with police. I hope the judgment will give room for pause when it comes to racial profiling, he said to a Toronto Star reporter. Not every person from the Middle East is a terrorist. Not every African-Canadian male is a thief.

3. Police and those in mental crisis

Bulletin No. 66 set out TPACs brief on how Toronto Police policy should be modified in dealing with those in mental crisis. We had hoped to present it to the Board in February, immediately following on the shooting death by police of Michael Eligon, who had run out of Toronto East General Hospital in a hospital gown and no shoes. The Board decided to delay the matter until April 19, when the chief will make a presentation on this issue.
In the interim, we have redrafted out brief to add the following at the beginning:

Police work in Toronto today has changed considerably from what it was twenty and thirty years ago. Because of the neglectful way in which those with mental and emotional issues are dealt with, and the limited services available to them, police officers are now often the front line staff who must deal with those in mental crisis. Often those suffering such crises are in a public space, or in a private space that does not offer them safety, and police are called in to deal with them. Some have said that one third or more incidents in which police are called to intervene involve someone with an emotional disturbance, mental illness, or a development disability.

Sadly, basic police training does not equip officers to deal well with these situations. Basic training teaches officers how to control any situation they are called to  Hands up! On the ground! or whatever  and to use a Use of Force model to ensure compliance. This is often exactly the wrong response for someone in mental crisis: being threatened by a police officer who wants control can often lead to the individual becoming frightened and reacting by attacking the officers. What is required instead, is a strategy by the officers which de-escalates the tension, a strategy which produces calmness so the individual will relax.

In short, police officers require a fundamentally different kind of basic training than they now receive. They must be trained to distinguish between situations where they are dealing with someone in a mental crisis and therefore they must de-escalate the emotional tension, and situations where a control tactic is more appropriate. This requires a fundamental re-examination and critical review of police training  it wont happen overnight. Trying to teach existing officers a whole new way of intervening which conflicts with their basic training will be of very limited use although it sometimes can be effective, just as officers doing a significant placement (of two or more weeks) in a psychiatric institution or agency that works with people having psychological or development disabilities can help some officers relate much differently to those in mental crisis. This kind of placement can help officers examine their own fears and stereotypes about mental illness, and thus change their own attitudes.

The important point is for the Board to recognize that existing training does not give officers the skills they need to deal with the work they are called to do, and the Board should push hard for different training at the Ontario Police College, followed by different training for new recruits at the Toronto Police College. We urge the Board to take such steps. 

Until these training changes are made, we argue that the steps set out in Bulletin No. 66 should be taken.

4. Editorializing about police funding

The Globe and Mail had three large editorials on police funding on March 21, 22, and 23. The general argument was that too much political deference has been shown to the police and that political leaders need to conduct a system-wide review of funding. The paper noted that 2010 was the 14th straight year of spending growth on police (now totally $12.6 billion across the country), and that in the large cities, first class officers now earn $80  90,000 a year before overtime and benefits. It argued we need more one-officer cars; less overtime for court appearances; improved productivity; a study of arrangements where police can retire on full pension after working 25 years; and maybe a review of how police are paid.

It is good to see some attention being paid. One hopes the Globe will return to this subject, particularly in advance of municipal budgets.

5. Strip search class action in British Columbia

A class action law suit is in the early stages in British Columbia, with the hearing necessary to certify the action almost completed. Several successful class actions against unlawful strip searches in the United States have been concluded, but this is the first such example in Canada.

The lawyer in the case, Jason Gratl, was quoted by the Vancouver Sun with reference to the Golden decision by the Supreme Court of Canada in 2001: In the case of Golden vs. Regina, the Supreme Court said that less intrusive searches could be made such as patting down a persons clothes  even in the groin area  or searching shoes or socks but not taking off a persons clothes and searching their genitals or rectum.

Gratl, like many others, interprets the SCC decision to mean that routine strip searches conducted without reasonable grounds for believing they would produce a weapon or other evidence, are contrary to Section 8 of the Canadian Charter of Rights and Freedoms. He noted that the Vancouver police force generally conducted 15,000 strip searches a year, most of them unlawful, until a change of policy in 2006, so that now less than half those arrested are strip searched.

6. Subscribe to the Bulletin

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Toronto Police Accountability Coalition
E-mail: info@tpac.ca