In this issue:
1. Complaints system is broken
2. New appointees to police board
3. OIPRD on no-knock entry
4. Draft Artificial Intelligence procedures
Toronto Police Accountability Bulletin No. 141, December 1, 2022
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 .
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In this issue:
1. Complaints system is broken
2. New appointees to police board
3. OIPRD on no-knock entry
4. Draft Artificial Intelligence procedures
5. Subscribe to the Bulletin
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1. Complaints system is broken
The police complaints systems is broken, and has returned to the way it was in the 1970s. As reporter Jim Rankin documents in an article in The Star on November 26, Corey David filed a complaint with the OIPRD about excessive use of force by police when he was arrested while protesting police clearing out an encampment of the homeless in a park. The OIPRD referred the case to the Toronto police and the investigation was done by an officer of the very same division, Division 14, of the officer who arrested David. Of course, the investigation concluded that none of the complaints about unlawful arrest and unnecessary use of force were substantiated. David’s lawyer has now asked the OIPRD to review the decision.
https://www.thestar.com/news/gta/2022/11/26/he-says-he-was-arrested-unfairly-by-toronto-police-his-complaint-was-dismissed-by-the-officers-colleague.html
An earlier article by Rankin notes the OIPRD refused to investigate a third party complaint, contrary to OIPRD legislation. https://www.thestar.com/news/gta/2022/05/13/civilian-watchdog-refuses-to-investigate-complaint-about-police-actions-at-toronto-homeless-clearance.html
After Toronto residents tried for years to change a system where police officers investigated complaints against fellow officers and usually found that complaints had no substance, in 1980 the provincial government established the Police Complaints Commission. The Commission provided independent investigation and adjudication of complaints by members of the public, and one had the sense that police officers were being held to account for inappropriate actions.
But the Commission was always under attack from police associations for being `against the police.’ Too often officers would not provide fulsome information to Commission investigators. Within a decade the Commission funding was restricted by the province so the Commission had difficulty functioning well, and when Mike Harris was elected premier in 1995, the Commission was quickly disbanded and the old system of police investigating police was back in place.
In Bulletin No. 1, May 2003, we wrote “the provincially regulated police complaints system [is] a system hopelessly impaired in the way it relies on police to investigate and judge themselves. There is little more frustrating for Toronto residents than to feel they have been badly treated by members of the police force and then find that there is no satisfactory manner of ensuring that their complaint is dealt under a fair and impartial system. The frustration is aggravated by the current approach which prevents a bystander who actually sees someone being badly treated by police from even filing a complaint.”
TPAC recommended that “the Ontario government establish an independent civilian body with the responsibility to: a) receive and review all complaints concerning police conduct and policy, including those made by third parties: and, b) investigate and adjudicate all such complaints.”
In Bulletin No. 6, December 2003 we made proposals for a better complaints system. Six month later the new provincial government appointed Judge Patrick LeSage to report on what a better complaints system would look like (Bulletin No. 12, June 2004) and LeSage’s recommendations were released in April 2005 (Bulletin No. 19, 2005), proposing an independent body responsible for investigating complaints, including from third parties, although the actual investigation could be by police officers, arguing that because they reported to this independent organization, police investigators would be independently monitored. Legislation was introduced in April 2006 (Bulletin No. 28, April 2006) and given third reading in June. The Office of the Independent Police Review Director – probably the clunkiest name one could have devised for a police complaints body – was established, but as we reported in Bulletin No. 42 June 2008, a year later it was still not it operational. That didn’t happen until 2009 (Bulletin No. 46, March 2009). One limitation of the legislation was that the OIPRD could not impose penalties on officers – that would be left to the relevant police chief.
TPAC reported on the first two years of OIPRD activity in Bulletin No. 66, February 2012. Quoting from the OIPRD report, “The OIPRD substantiated about 3 per cent of all complaints filed. Of those 107 substantiated complaints, 81 were considered `not serious’, so nothing was done about them. The remaining 26 complaints - or 0.5 per cent of all complaints filed - were deemed `serious’.
“The OIPRD cannot impose penalties, so these `serious’ cases were referred to the affected police force for disciplinary action under the Police Services Act. As of March 31, 2011 exactly one (1) disciplinary decision was made by a police force on these 26 serious complaints, but as of early February 2012, two other disciplinary hearings have been posted on the OIPRD web site. Thus three disciplinary hearings have been held for events that took place in April, June and August 2010 - more than 17 months ago.”
The OIPRD was hardly an effective body, or one that gave the public much confidence. When Mr. Justice Tulloch was appointed in 2016 to review police oversight, TPAC wrote “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.“ (Bulletin No. 100, October 2016.)
Tulloch suggested many changes in his draft report, but in June 2018 Premier Ford returned a Conservative government to Ontario, and in the first speech from the Throne it was announced that the government intended to "free police from onerous restrictions that treat those in uniform as subjects of suspicion and scorn.” (Bulletin No. 109, July 2018) Not much hope was held out for the changes Tulloch released in his final report, (Bulletin No. 111, January 2019.) Gerry McNeilly, who had headed the OIPRD since its formation, was removed from his position in 2019 and Ford appointed a new head of the OIPRD.
And now, forty years later, we are back to police officers investigating themselves and where third party complaints are rejected. Sadly, that seems the way the Ford government likes it.
2. New appointees to police board
The newly elected City Council has made its appointments to the Toronto Police Service Board. Councillor Francis Nunciata, an ally of Mayor John Tory, has been reappointed. Councillor Vincent Crisanti, a second appointee and long term councillor in Etobicoke ward said in 2018 “I got first elected in 2010 with the support of (former mayor) Rob Ford and I’m here today because of the Fords and I want to thank them.”
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Nunciata has shown for the last dozen years that she believes the Toronto police rarely make a mistake. Crisanti can be expected to take the same stance.
The third appointee is Lily Cheng, a new and progressive voice from North York. Cheng has taken strong positions against Bill 23, stripping the Council of funds and powers, and Bill 39, giving Mayor Tory the power to pass bylaws with one-third of the members on Council. Mayor Tory decided not to serve on the Board, something he had done for eight years.
Unfortunately the public was denied to opportunity of having a say in these appointments: they were made at the first meeting of the new Council.
3. OIPRD on no-knock entry
The OIPRD has notified all police services in Ontario regarding its guidelines for no-knock entries. It notes that there is a developing jurisprudence on the subject, and that many police services have no policies on the practice. It makes a number of recommendations: including:
a) Conduct a review of policies relating to the execution of search warrants to ensure it complies with established jurisprudence with respect to dynamic entries and the departure from the “knock and announce” rule.
b) Consider developing policies on the execution of search warrants and dynamic entries which identify the parameters set out by the courts and expressly set out the following: departure from the “knock and announce” rule only occurs in exigent circumstances; requirements before departing from the “knock and announce” rule such as supervisory approval and prescribed circumstances when officers may depart from the rule.
c) The need for a documented plan and risk assessment to be created prior to the execution of all search warrants. Such as the presence of suspects, presence of firearms, the potential for violence, the feasibility of a non-dynamic entry.
d) reporting requirements after the execution of a search warrant.
The notification letter can be found https://www.oiprd.on.ca/wp-content/uploads/Notification-Letter-to-Ontario-Police-Services-Knock-and-Announce-Rule.pdf
4. Draft Artificial Intelligence procedures
The Toronto police service has released a draft of the procedure for the use of Artificial Intelligence, and invites public comment until December 23: https://www.tps.ca/police-reform/artificial-intelligence-procedure-consultation/ . This procedure is based on the Board’s decisions of February 28, 2022. It includes a questionnaire that must be filled out and reviewed by management before an AI program can be authorized for use by the service.
TPAC took the position in February (see Bulletin No. 136, February 2022) that the proposed policy was inadequate, and its short comings are evident in this procedure. TPAC asked that because AI technologies always include acknowledged or unforeseen biases, AI technologies should be prohibited from being used to stop, detain, or arrest individuals. We asked for independent input regarding AI technologies used by police, and for judicial approval for the live use of biometric identification AI systems including facial, gait and voice recognition. We asked for judicial approval before historical data may be used in AI and before AI is used at public gatherings or for on-line surveillance. We asked for a public-friendly explanation of AI used by the service, and a process so the public could ask for information stored in the data base to be destroyed. None of these requests were adopted by the Board and none are reflected in the procedure.
5. Subscribe to the Bulletin
To subscribe or unsubscribe to this Bulletin, please send a note to info@tpac.ca with the instructions in the subject line or in the text of the message. Our e-mail list is confidential and will not be made available to others. There is no charge for the Bulletin. Our website is http://www.tpac.ca .
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