Toronto Police Accountability Bulletin No. 3

September 1st 2003

1. No-tech confessions
2. Kingston police collect racial data
3. Toronto Police Service Board without Gardner
4. Reflections of one Toronto Police Services Board member
5. Subscribe to the Bulletin

1. No-tech confessions

The best example of no-tech police work in Toronto probably occurs when the police forego the use of a video camera or tape recorder to record a confession.

A recent Ontario Court of Appeal decision, R vs Keigo Glen White, recently set aside convictions and acquitted the defendant (he had spent four years in jail) who the police said had confessed to robbing banks. The confession was not taped, and at the time the officers didn't take notes of what was said.

A 2001 court decision sets out the law, stating "where the suspect is in custody, and recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to making a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the crown to prove voluntariness beyond a reasonable doubt."

After citing this statement, Judge Feldman of the Ontario Court of Appeal concluded: "This is a case where the voluntariness of the appellant's statements is suspect. This is because the police set out twice to interrogate the appellant without using the available recording equipment, and because there is nothing in the evidence on the voir dire which could satisfy the court of the reliability of the account of the officers."
Indeed, some of the police evidence seems entirely unreliable. One detective gave evidence at trial that he didn't find anything on the first body search of the suspect, but on the second search found several syringes in his socks and back pockets - although he didn't retain these items and never recorded finding them.

A Toronto police spokesperson says the policy is to video-tape confessions.
Commenting on the appeal court decision in the Globe and Mail, defense lawyer Frank Addario complained that Toronto hold-up squad officers seem especially unwilling to videotape statements. "I think the hold-up squad has made a considered choice not to follow the instruction of the court, to roll the dice on persuading judges that nothing untoward happened behind the closed door of the interrogation room," said Addario. "The police seem able to operate every gizmo and gadget that is produced to help find criminals- but none of them seem to know how to turn on a video camera or tape recorder."

This seems to be the same laissez-faire attitude the Toronto police have adopted with respect to the decision of the Supreme Court of Canada in the Golden case regarding strip searches. In December 2001 the Supreme Court decided that strip searches were intrusive enough that they should occur only in exceptional circumstances. Nevertheless, it appears that more than one third of those arrested in Toronto are subject to strip searches.

The White case:

The Moore-McFarlane case - the 2001 precedent referred to in White:

The Golden case:

Information on the Golden case can also be found on the TPAC website:

2. Kingston police collect racial data

Racial profiling has been a significant issue in Toronto since the publication in the Toronto Star of articles analyzing police data last fall. (See Bulletin No. 1). Police have dismissed both the Stars analysis and extensive anecdotal information brought forward by the African Canadian community and other visible minority people.

Some have suggested that one way to monitor the situation would be for police to collect data on the occasions when police stop individuals. This is widely done in American jurisdictions, but not in Canada. Such a program is being instituted in Kingston, Ontario, starting in October for a one year experiment.

The program has been devised by Ray Lonsdale, crime analyst with the Kingston Police force. Lonsdale says it's simply a matter of officers filling in a form for every `stop", that is, every interaction that involves something more than a simple "hello" with a member of the public. The officer will be required to tick off a box titled "Race and ethnicity", with the categories Caucasian, Black, South Asian, Asian, Other.

Lonsdale says there was initial reluctance on the part of senior management to this proposal, but after discussion over a series of months, they realized that the advantage of keeping this data is that management would be able to discover whether problems exist among their staff. "They realized it's a good thing," he says. "They'll be able to weed out the racists."

Lonsdale thinks this is a straightforward program which should be implemented everywhere.

3. Toronto Police Board without Gardner

As reported in the last Bulletin, the Ontario Civilian Commission on Police Services has been investigating the claim that Norm Gardner, chair of the Toronto Police Service Board, received a handgun from a Toronto gun manufacturer, Para Ordnance, in February. Apparently the firm asked Gardner to intervene to get a booth for the company at the convention of the International Association of Chiefs of Police in Toronto in 2001 for the original $25,000 asking price. The company ultimately paid $7,500 after Gardner arranged an introduction to a police public relations officer. Gardner claims the maximum fee was reduced after organizers realized the original fee was too high.

OCCOPS has now ordered a public inquiry into Gardner's behaviour to determine if it contravenes the Police Services Act. Kent Laidlaw, the investigator retained by the Commission, has not only confirmed the gift of the handgun but has apparently also discovered that Gardner accepted about 5,000 rounds of ammunition from staff at the Toronto (C.O. Bick) Police College. That too will be part of the inquiry, expected to begin in November.

Laidlaw's report has not yet been made public and the Commission held its discussion and made its decision in camera, so the issue is still clouded in secrecy, although the inquiry will apparently be in public.

Whatever the inquiry's outcome, it is bound to have an impact on the selection of the next chair of the Police Services Board. Gardner, as an appointee of the provincial government, has been on the Board for more than a decade and has been chair for the past five years, selected by the Board each January for a one year term. It is very difficult to believe that a future Board, however constituted, would be willing to again appoint Gardner as its top representative.

Many believe Gardner's role with Police Board is finished and his influence, which ensured the board did not function as a legitimate forum for debate about police policy, is over. Some think the Board can once again serve this important purpose.

But to some extent Gardner is still there. When he stepped aside in June and relinquished his duties as Chair after much pressure from the Board, he did so subject to the continuation of his handsome salary of $7,500 a month. Between the time when he stepped aside and the hearing, he will have received more than $40,000 for a job he is not doing.

4. Reflections of one Toronto Police Services Board member

Alan Heisey was appointed as city council's citizen representative to the Toronto Police Services Board in March 2001 for a three year term. Many have seen him as a considerate, if solitary, voice on the Board.

Heisey has recently done a reporting letter, dated September 3, 2003, to members of council and other members of the Board. This represents one of the few occasions in recent memory when a citizen appointee reported on Board activities. He has done so in a way which begins to define a more positive agenda for the Board.

TPAC has managed to obtain a copy, which is reprinted in full below, without further comment:

RE: Toronto Police Services Board

I am writing to update you as to my experience as Council's citizen representative on the Toronto Police Services Board and my thoughts as to what has or has not been accomplished since my appointment 2 years ago. The opinions expressed in this letter are my own and are not made on behalf of the Board.

I have waited until the completion of my second year, as this has been my first in depth exposure to Police issues. I wanted to be sure that I had some understanding of the issues posed by this large and complex organization.

As a first step to getting an appreciation of some of the issues, I went out on several evening patrols with front line officers. On two evenings I went on bicycle patrols with officers in 51 and 52 Divisions and saw many downtown areas I am very familiar with in a very new light. Also, I went on a bicycle patrol with a Parking Enforcement Officer one late Fall evening in the downtown core.

These opportunities showed me a side of policing I was not familiar with. The relationship of many of the officers with many disadvantaged street people was touching and I was pleased with the humanity and compassion that the officers I traveled with showed to many of the people we came into contact with.

There were no dramatic crimes that I witnessed, only a series of interactions by officers with many of society's most disadvantaged people. I did not appreciate how much of police work involves social work. The ability of all of the officers I came into contact with to remain compassionate while maintaining the necessary professional detachment was quite moving. If the officers I have come into contact with are representative of the individuals serving this City, then Toronto is fortunate in the quality of its police service.

One of the striking events that took place on a bicycle patrol with officers from 51 Division on Parliament Street was that on one or two occasions members of the public came up to the officers and expressed their pleasure at seeing officers out of their car and on the street on their bicycles.

It is my belief that the downtown area could use more officers on foot and bicycle patrol and that the public would like to see this. I raised this issue early on in my tenure at the Board but was advised that staffing levels and response time, ie. the existing budget, does not permit any significant expansion in this kind of police presence and that the issue is operational and beyond the purview of the Board.

I have organized this report to Council under three subject headings, Board Structure, Labour Relations and Current Issues.

Given the size and scope of the Board and its activities, I have undoubtedly missed some issues that would be of importance to many. Their omission is not to suggest lack of importance. Rather, I have attempted to comment on three or four important issues that have come before the Board during the last two years.

Board Structure

1) The Board, at seven members, is too small.

A larger Board is required for several reasons. The number of Board meetings is not onerous at an average of only 1 or 2 meetings a month. The difficulty arises in the context of the large number of ceremonial events.

I do not denigrate the importance of attending Service and community events. Attendance by Board Members serves as a reminder to the Service and the community that a civilian oversight body is ultimately responsible for the Service and that someone is keeping an eye on things.
A larger Board would be better able to undertake the Boards obligations to attend ceremonial and community events while maintaining the Board's core oversight function.

2) Board Appointments Should Be Longer.

Council currently appoints Councillors for terms of 18 months. Given the complexity of the TPS and its activities, it is my recommendation that Councillors be appointed for 3 years. An 18 month term results in less effective Council representation than would otherwise be the case.

3) There needs to be more continuity of Board membership.

When I first was appointed to the Board, the Board Member with the longest service, other than the Chair Norm Gardner, had been on the Board about a year!

In the last two years we have received two new Board members, Councillor Nunziata and Dr. Benson Lau, a provincial appointee. There could be as many as five or six new Board Members, in the next 12 months.

The Board's membership has been volatile and short-lived over the last 6 years. Only Chairman Gardner and Al Leach, who has just been renewed, have served a full three year term or greater. This has resulted in the Board having less experience and being less effective than it otherwise would have been.

I would hope that the Province and City Council would cooperate in new appointments to ensure that at least half of the Board members at any one time have served for at least three years ie the City and the Province should aim to have appointments staggered and some renewed.

Issues That Have Arisen at the Board

4) Independent Civilian Complaints System

The Board, led by Councillor Lindsay Luby, in an important decision, moved that the Province adopt a more civilian oriented and independent complaints system.

This resolution was ignored by the media in general and surprisingly by the Toronto Star.

I personally believe that an independent civilian complaints system should be reinstated by the Province. Many of the complaints made against the TPS would be harder to sustain if such a system were in place.

An independent civilian complaints commission should be considered in the context of an examination of how to consolidate, simplify and adjudicate the numerous separate legal proceedings brought in relation to alleged police misconduct.

5) Racial Profiling

This is one of the most contentious and emotional issues the Board has had to face during my time here.

I am personally opposed to maintaining racial statistics as I have read too much history and know how such statistics can be misused in unanticipated ways.

I acknowledge that there is a perception on the part of many members of the African Canadian community I come into contact with that they receive different treatment from our officers.

Whether perception or reality, there is an issue that has to be addressed.
The Board is currently preparing a comprehensive response which will be made available in the next month.

There will be further public meeting(s) to discuss the final report and any recommendations.

I believe that the Board should adopt a more specific policy than currently exists, condemning racial profiling. Otherwise I am awaiting the results of the Board's consultation process to finalize my thinking.

6) Board Accessibility

The current start time of Board meetings is 10:30 a.m. Dr. Benson Lau and I suggested approximately a year ago that Board meetings be shifted so that the confidential portion would commence at 1:30 with the public portion commencing at approximately 4:00 to 4:30.

I felt that this would be a more convenient time and make our Board more accessible to interested members of the public. This proposal was not accepted by the Board.

I also believe that there is merit in considering holding Board meetings outside of Police Headquarters. Part of creating confidence in an independent civilian oversight body is to create the appearance of independence. Our role as an independent body would, in my opinion, be enhanced by holding some of our public meetings outside of Police Headquarters. I believe the benefits of off site public meetings would outweigh the cost. I hope the Board will consider trying an off site meeting as an experiment.

7) Board Governance

When I first arrived at the Board, I was advised there had been no Board retreats to discuss policy or governance issues for several years.

I requested a Board retreat which was held over a year ago.

There have now been three Board retreats and they have been productive.

8) Chief Fantino's Proposed Protest By-Law

Unfortunately, I was unable to attend the March 27, 2003 Board meeting where this was considered. I opposed the Chief's proposal and communicated my disagreement to my fellow Board members before the meeting.

Labour Relations

9) Improved Labour Relations.

In spite of the media you may read the working relationship between the Board and the TPA is the best it has been in the last two years. We did start however from a very low spot.

I believe this is due in large part to the new Collective Agreement, negotiated by Chair Norm Gardner and Councillor Lindsay Luby.

Yours very truly,
A. Milliken Heisey

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