1. Street checks continue
2. Police response to those with mental health issues
3. Missing the opportunity to issue clearance letters
4. The Police Board says it is getting tough
5. Hearing on police integrity standards
6. Strip searches
Toronto Police Accountability Bulletin No. 75, May 15, 2013.
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
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In this issue:
1. Street checks continue
2. Police response to those with mental health issues
3. Missing the opportunity to issue clearance letters
4. The Police Board says it is getting tough
5. Hearing on police integrity standards
6. Strip searches
7. Subscribe to the Bulletin
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1. Street checks continue
It is difficult to know whether the Toronto Police Services Board is serious about reining in the number and purpose of police checks carding undertaken by the Toronto police.
As noted in previous Bulletins, the Board has expressed its desire on almost half a dozen occasions in the last 13 months to address this intrusive police activity police create about 250,000 cards a year registering information on the youth they stop in the city every year but the Board never gets around to taking remedial action. On April 25 when the matter was again before the Board, the decision was made that the police would give out a receipt when the stops occur, not the carbon copy of the information the police record which many have demanded. Police will continue to demand information such as the school the youth attends, whether parents are separated or divorced, and will record eye colour, hair style, facial hair, clothes, tattoos, birthdate, and more, but the receipt just has the officers name and number and the time and location of the stop. The police call this new Form 306 a `contact receipt.
The Board says this is just an `interim measure. The report of the Street Check Subcommittee it can be found on the main page of the Board web site, http://www.tpsb.ca - also includes recommendations for more reports from the chief of police of a number of related issues. It also outlines the interests of the committee including: the purpose of street checks, the data collected; the training of officers; research; and community consultations. Terms of Reference for the sub-committees work is also included, and those terms are quite broad. The chief is to provide a progress report for the June Board meeting, but if past experience is any indication, the chief will probably say he needs another three months in which to report.
The report requested in January from the Boards lawyer about the relationship between street checks and the Charter of Rights and Freedoms the Law Union says this practise offends the Charter has yet to surface, yet another example of how the Board asks for things to happen which never do.
And of course the carding continues, with police stopping more than 20,000 youth mostly racialized, mostly in low income parts of the city every month. At least one division has told officers that they are expected to make a certain number of street checks for carding purposes every week. The more one learns about the practise, the more it seems to be a kind of intimidation of youth who, when they say they wont answer because they know their rights, learn that police dont have much interest in acknowledging or protecting those rights.
2. Police response to those with mental health issues
After Michael Eligon was found running around streets near the Toronto East General Hospital in a hospital gown in early 2012, and was then shot and killed by Toronto police, community outcry led to the Board asking the chief of police for a full report on how the police force deals with the mentally ill. (See Bulletin No. 68, May 2012. ) That report came forward at the Board meeting on April 25.
The chief reports that the police are doing good work using Mobile Crisis Intervention Teams which are established in 12 of the 17 police divisions in the city, each for about 10 hours a day. He notes that the Teams are never first responders (as has been requested for several years), but are only called in once the primary response officers deem the situation is `stabilized and safe. As well, he cites the training given to all officers, and provides a lengthy list of professional who have been consulted about police strategies.
On paper it might sound that the mentally ill should have no fears of the police and that the police are doing an exemplary job. But reality always intrudes, as it did the very day after the Police Services Board meeting when a mentally ill man wielding a machete near a bank branch in Scarborough was shot and killed by two Toronto officers. That occurred before the Mobile Crisis Intervention Team with its skills in de-escalation was called, presumably because the primary response officers didnt think they had stabilized the situation or made it safe.
3. Missing the opportunity to issue clearance letters
Last September the Canadian Civil Liberties Association issued a report asking police to significantly modify the procedures used to determine what information should be included in clearance letters issued by police. CCLA argued that non-conviction information should be included only in exceptional cases, and only after the person involved can make submissions.
The information included by police in clearance letters, particularly for working with individuals in the vulnerable sector, is a big problem for students at community colleges who need such letters to complete practical experience in such fields as nursing and home care. Students often find that police refuse to give clearance letters because they might have had a friend who was arrested, or may have been charged in error.
The chief was asked by the Board to report on the CCLA brief, and that report surfaced at the April Board meeting. The chief says the volume of non-conviction records is so great that it isnt feasible to review them before putting the info in someones file. Further, says the chief, the police never give this information to an employer, only to the applicant. It is reasoning that nicely misses the impact: if your letter from the police says you have been charged with a crime (never mentioning that the charge was withdrawn, or the charge was in error, or that you were never convicted), what do you as a student tell the agency with which you have been placed for educational purposes when it asks for your clearance letter?
Once again, the board simply adopted the chiefs report that says the world as seen from police headquarters is functioning well, even if there is informed opinion which disagrees.
4. The Police Board says it is getting tough
The Toronto Police Services Board released the following `STATEMENT ON POLICE OFFICER CONDUCT on April 29, 2013:
The Toronto Police Services Board (the Board) expects the highest standard of integrity, ethical conduct and professionalism from all members of the Toronto Police Service.
The Board notes with satisfaction that the vast majority of men and women who provide policing services to our community uphold such a high standard.
It is, however, a matter of regret that instances come to the Boards attention where some individuals fall far short of that standard. It is the Boards expectation that there must be zero tolerance for the most egregious types of misconduct, and those found to have engaged in them must be dealt with sternly and to the fullest extent of the law.
Indeed, it is a requirement of the policing profession that police officers must swear to uphold the law and act according to law. Any failure to do so can have serious consequences. Public trust is undermined. Important criminal prosecutions can be compromised, thus threatening public safety. All those who serve with honesty, integrity and dedication run the risk of having their reputation being damaged because of the actions of a few. As well, the reputation of the organization is adversely affected.
The Board is determined to do all it needs to do in order to ensure that this happens. In this regard, the Board is concerned that the existing provisions of the provinces Police Services Act, as well as established precedents and sentencing principles, can and do, on occasion, restrict the Services ability to uphold a high standard.
The Board will continue to advocate as vigorously as possible with the province for appropriate changes to the Police Services Act so that it truly serves the public interest.
Chief Blair made a similar kind of statement a few weeks earlier after several officers had taken actions which clearly put the police force in ill-repute.
Yes, it would be good if the Police Chief were able to take effective action against officers who are not good employees. The Police Services Act says officers can only be suspended with pay unless jailed after criminal conviction, and yes it would be good if that legislation were amended to include more remedies. The chance of that happening soon is very small since there seems no will at Queens Park to wade into this issue. But what could happen is that more officers could be charged under that Act for wrongful activities and significant penalties sought. Unfortunately that kind of approach seems unattractive to either the chief or the Board.
5. Hearing on police integrity standards
As part of its 2014-2016 Business Planning consultation process, The Police Services Board held a special meeting at 4 pm on April 29 requesting comments from the public on whether there is a need for a Toronto Police Service priority related to integrity, ethics, professional standards for its members and enhanced customer service to the public.
The meeting was not widely publicized, and attendance was sparse less than 20 members of the public. Marco LaMacchia made a presentation on behalf of TPAC, suggesting two changes to enhance integrity and professional standards:
A) That the Toronto Police Services Board adopt a policy that officers will comply with Special Investigation Unit laws, regulations and directives, or face disciplinary action.
There are too many cases where police do not report cases which should be reported to the SIU, where they do not respond on a timely basis to requests to be interviewed, and where they do not respond to letters sent by the SIU. The laws and regulations are fine the problem is that the police do not always act accordingly.
B) That the Board decide that the next director of the professional standards division, the division that investigates police on issues of misconduct, be a civilian, so that the situation does not continue where police investigate police. (This action has already been taken in Seattle.)
Further, consideration should be given that the director, whether a civilian or not, should report to the Board rather than to the chief to ensure independence. This reporting relationship now occurs to these kinds of officials on the provincial and federal level.
No decisions were made at the meeting as to whether the Board would accept any of the proposals made at this gathering.
6. Strip searches
TPAC has been before the Board on numerous occasions in the last eight years trying to get the Board and police force to adopt a strip search policy which conforms to the Golden decision of the Supreme Court of Canada, and one which in fact police adhere to. (We will again be before the Board on this subject in late May.) The importance of making a change to strip search policy and practises by Toronto police came to the fore with the recent decision of Mr. Justice David Cole in the case of `R. vs S.M., a young person.
Police officers were called to a school and found that a knapsack owned by S.M. a twelve year old, contained a revolver and ammunition. He was arrested, and patted down (his cell phone was found), then taken with his mother to the police station. The decision states:
[10] The two constables then escorted the young person to a secure interview room. They removed the handcuffs and asked S.M. to take off items of his clothing. As discussed later in these reasons Toronto Police Service (TPS) policy dictates that what is supposed to happen is that the detainee is to remove one item of clothing at a time; once each is inspected the officer conducting the search should return it to him and allow him to put it back on before the next item is removed for inspection. Importantly, the policy directs that absent exigent circumstances a detainee is never to be left naked.
[11] There was a dispute in the evidence about what happened next. P.C. Christian testified that TPS policy was followed. However, both P.C. Saini and the accused testified that though the first part of this procedure was followed i.e. that the accused removed one item of clothing at a time and presented each for inspection, the second part of the procedure was not followed in that the accused was not allowed to put each item of clothing back on as it was returned to him, to the point that when the officers had finished inspecting the clothing and had placed each item on the chair in the room, he was completely naked. Having heard this evidence, I am prepared to find as a fact that what P.C. Saini and the accused testified to was what actually happened, rather than what P.C. Christian recalled.
[12] While the accused was naked again following what I understand to be standard practices regularly followed in such searches - he was told to lift his scrotum so that the officers could visually inspect between his legs. He was then told to turn around and open his buttocks, similarly so that the officers could briefly inspect his rectal cavity. Though the accused testified that he found this entire process to be scar[y] and uncomfortable , as he had never been naked in front of strangers before, at no time did the officers come into physical contact with him during this (approximately) five minute search process. He also agreed that the officers were polite and non-threatening in their behaviour.
[13] Both P.C. Saini and the accused testified that it was only when the officers were about to leave the interview room that S.M. was told he could put his clothes back on, which he did.
[39] From all of this I feel comfortable concluding that, despite not having the full text of the current TPS policy on strip searches filed as an exhibit in this case, it is as discussed in the case law I have cited. I thus conclude that the policy reflects the principle laid down in Golden, that absent exigent circumstances, a detainee subjected to a strip search should not be fully naked by the end of the search. As I have already found as a fact, neither did the two searching constables follow the mandated procedures, nor were there any exigent circumstances that might have excused them from doing so. As such, they breached S.M.s s. 8 Charter right not be subjected to an unreasonable search.
[44] One of the reasons I went through the case law [four cases] I have cited and there are others was to demonstrate that there is now at least a decade-long history of TPS strip searches sometimes being found to be unconstitutional for failure of officers to follow mandated procedures brought into effect following the Golden decision.
[46] To this point in the analysis, I reiterate that I have concluded that in my judgment the record demonstrates that the abuse of s. 8 rights by TPS officers not following mandated procedures will likely continue albeit rarely. Secondly, I have come to the conclusion that no other court-imposed remedy (except for a stay of proceedings) is capable of removing that prospectively prejudicial behaviour.
[49] In my view, this is one of those rare cases where past misconduct in this and other similar cases is so egregious that the mere fact of going forward in light of it will be offensive (Tobiass at para. 91). The charges are stayed.
Mr. Justice Cole concluded the judgment with these words to the youth:
[50] Though what I have written is sufficient to dispose of the charges before the court, I do want to say a word to S.M. Because this case has been decided without going through a full trial, I have not heard your version of how you came into possession of this highly dangerous weapon, made even more dangerous by the presence of ammunition. Whatever is your version of this, I sincerely hope that you have learned from this experience. Young persons have absolutely no business being in possession of guns. They do not make you cool, they do not make you powerful, they do not make you into a tough guy. Just the converse: possession of them is foolish, not only because they can get you thrown out of school or put you in jail, but more importantly because they can injure or kill you or your fellow students. Be smart, make the right choices. Leave guns alone. The parent community at large, your teachers and fellow students have a right to expect that schools will be a safe environment for everybody. It is of grave concern when guns are found in the schools and threaten the safety net for all involved. As such, although your case is being stayed, nevertheless the circumstances of you being before the court should not be minimized or misunderstood.
Strong words. A decade-long history of TPS strip searches sometimes being found to be unconstitutional for failure of officers to follow mandated procedures brought into effect following the Golden decision.
Mr. Justice Cole indicated he did not have the Toronto Police Strip Search policy before him. As we note in Bulletin No. 64, November 2011, it is not easy to get this policy the police deliberately keep it secret. But you will find it in that Bulletin, and it nowhere reflects the Golden decision that an individual shall not be left completely naked. It does state that there must be reasonable grounds for a strip search, which does lead to one question that I wish had been addressed: why did the police think a strip search was needed of a 12 year old when they had done a pat down (and retrieved the cell phone) but had no reason for believing the youth was trying to hide anything else?
7. Subscribe to the Bulletin
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