Toronto Police Accountability Bulletin No. 17

February 25th 2005

1. Second thoughts on strip searches
2. Will the Board buy 500 Tasers?
3. Sexual assault
4. Up and Out for the Chief
5. Community Statement concerning the expected LeSage recommendations
6. Blink: high speed chases and more
7. Subscribe to the Bulletin

1. Second thoughts on strip searches

Finally the Toronto Police Services Board has a good opportunity to create a strip search policy that respects the people of Toronto - and the law as interpreted by the Supreme Court of Canada.

In late 2002, the Supreme Court of Canada, while considering a case involving a strip search by Toronto police (the Golden case), made a definitive ruling on strip searches. The court stated that it considered a strip search an exceptional step and said it should not be conducted routinely, but that reasonable justification would necessary before it can be carried out.

Requests to the chief and the Board to draft a policy conforming to these constraints got nowhere, and the Board continued with a policy which generally allowed police to strip search almost everyone who was put in a cell at a station. But then the Ontario Civilian Commission on Police Services intervened. It was reviewing a complaint about a 14 year old youth being strip searched by Toronto police for reasons OCCOPS thought insufficient, and in December 2003 it asked that the Toronto policy be reviewed.

Alan Heisey, who then chaired the Board, had to do some fancy footwork, but he got the Board to agree to ask the city solicitor to review the policy. And just as Julian Fantino is moving on, a report by the city solicitor has emerged. (It is item No. 16 on the Board agenda of February 10, and can be found at http://www.torontopolcieboard.on.ca , go Agendas, February 10, and scroll down to page 171 - 74. )

The Solicitor apparently believes the current police policy on strip searches does not reflect the best interpretation of the Supreme Court decision in the Golden case. He is of the opinion that Golden and subsequent judicial rulings conclude that routine strip searches cannot be justified. That is a position that Toronto Police Accountability Coalition has been advocating for two and a half years.

TPAC recently reiterated its position to the Board, and has requested new policy and procedure to reflect the solicitor's concerns. The new policy should:

a) include a statement that strip searches are not a routine police practice but are done only in exceptional circumstances;

b) delete the consent of a person as an authorization for a strip search, since any consent will most often be given under duress;

c) require that in advance of any strip search the officer write, on a form designed for this purpose, the reasonable and probable grounds making the search necessary, and that these grounds be approved by a supervisor before a strip search may take place;

d) strip search authorization forms be forwarded to the Chief on a monthly basis so the chief may report monthly to the Board to ensure the Supreme Court decision is being complied with;

e) where it is necessary and there are appropriate grounds to conduct a strip search, it must be conducted not only by a member of the same sex but outside of the presence of members of the opposite sex. Transgender/transsexual people must be accommodated and their Charter rights protected - consultation with this community is required;

f) anyone subject to a search should be advised of available complaint procedures, and given the extreme violative nature of a strip search (as recognized in Golden), the complaint procedures be improved to address such complaints.

This matter will be on the agenda of the Board meeting scheduled for 1.30 pm, Tuesday March 8, at Police Headquarters. TPAC will be again pressing for change. Opportunities to speak to the Board can be arranged through the Board Secretary at 416 808 8094.

2. Will the Board buy 500 Tasers?

As reported in Bulletin 15, in November 2004 Chief Fantino asked the Board to buy 500 new Tasers, and he renewed that request unexpectedly at the December Board meeting even though the report requested from the Medical Officer of Health was not available.

The MOH has now reported, and while this report (dated January 31) is not definitive in the course of action which should be taken, it does ask the Board to proceed with caution. The MOH states that Tasers "are capable of causing some harm and there is limited evidence available to assess the precise level of risk" and Tasers "should be reserved for situations in which the risk of not subduing the individual or of using firearms is significant."

The report also goes on to state that "any use of Tasers [should] meet strict controls as to circumstance of use, as well as require training, follow-up and reporting of usage, particularly if the potential for deployment increases with enhanced availability to frontline supervisors."

A full copy of the report can be found at http://www.torontopoliceboard.on.ca, go to Agendas, February 10 agenda, Item 8, and scroll down to page 103 - 106

This matter will be before the Board on March 8. Concerns about Tasers have already been expressed by the American Civil Liberties Association, and by Amnesty International. TPAC's position is that a much more preferable strategy to the use of Tasers is to train officers in de-escalation techniques, as recommended by the Coroner's jury in the Edmund Yu case. The jury proposed that there should be annual training - one day a year - in crisis resolution, and it should extend not just to front line officers, but also to "command officers and senior management as well." The jury said it "should be an integral part of police training," and it outlined the specifics of what it meant in seven succinct points:

A. Every opportunity should be taken to convert an unplanned operation into a planned operation.

B. Unless impractical to do so, a "cordon and containment" approach should be adopted.

C. That the aim of crisis resolution should be de-escalation and the resolution of situations without physical force.

D. That the "first contact" and "time talk and tactics" approach be used by police whenever possible and that "active listening" be stressed as a skill that officers must develop.

E. The fear and apprehension experienced by officers as a result of previous experiences, stereotyping or lack of knowledge, whether about mental illness, race, culture or other factors [be addressed in training.]

F. [Officers be made cognizant of ] the fear and apprehension which persons involved with the police may feel as a result of previous experience, stereotyping or lack of knowledge, particularly due to mental illness, racial or cultural background.

G. That police officers, whenever possible, should maintain a sufficient reactionary gap to give them the time to disengage, tactically reposition themselves and/or react in such a way which prevents a situation from escalating from the verbal to the violent.

TPAC has suggested that the Board defer purchasing more Tasers during 2005, review the practices of the Emergency Task Force so Tasers are more readily available through it as an alternative to having more officers with Tasers; the provincial government should be asked to study the health implications of all less lethal weapons; and the Board should implement the Edmond Yu coroner jury recommendations.

3. Moving ahead on sexual assault investigations

Jane Doe and her colleagues, after many frustrating years of being pushed aside, have finally made serious headway on sexual assault investigations. This item was flagged in Bulletin 16 last month, and this time around women were heard.

Councillor Pam McConnell, who now chairs the Board, has been an advocate of the Jane Doe case for more than a decade, and she made it clear police obfuscation would not continue. The Board agreed to proceed with the most recent auditor's report. It established an implementation committee consisting equally of police and representatives of women's organizations familiar with sexual assault issues. Like the police on this committee, the women will be compensated for their time - which not only indicates that their involvement is valued, but also makes it clear they can't be brushed aside as they have been in the past.

4. Out and up for the Chief

Julian Fantino's last day as chief of the Toronto Police force will be February 28. (Contrary to a report in the Toronto Sun, he is not receiving a large compensation package. He will receive payment for unused vacation, but that's normal with most contracts.) He will then claim his new provincial appointment as Commissioner of Emergency Management. TPAC was concerned enough about this appointment to write Premier Dalton McGuinty stating, in part:

"In times of emergency it is extremely important that all citizens be treated fairly, and that none suffer discrimination. The emergency management function also requires someone at is helm who offers a calm, reassuring presence at times of emergency and who has the ability of ensuring that the appropriate resources are brought to bear on problems as quickly as possible to maintain public safety and to provide public reassurance.

"We have monitored Mr. Fantino's leadership of the Toronto Police service. He has refused to acknowledge the well-documented racial profiling by the Toronto police, and has proceeded as though it did not exist. We fear that in this new position he will act in the same way, which would be harmful for the people of Ontario. If he is to be appointed, we ask that you seek very clear guarantees that this is not how he will perform in this position."

TPAC has not yet received a response from the Premier.

5. Community statement concerning the LeSage recommendations

Former judge Patrick LeSage is studying a police complaints procedure for Ontario, and is expected to report in mid-March. The following statement has been signed by two dozen community groups in Ontario, including by TPAC:

"Any consideration of reforms to the public complaints process regarding police must begin with recognition of the power imbalance that exists between police and the communities in which they work. An effective complaints process is not only essential to establishing and maintaining police accountability to the public, it also impacts on community strategies (including police response) that are developed to deal with broader issues of poverty, homelessness, racism and other forms of discrimination.

"This is the context that informs the following statement regarding changes the communities we live and work in require in order for the public complaints process regarding police to be credible, as well as safe and effective.

"Hon. Patrick LeSage's review and report is the most recent attempt to engage some stakeholders (community members, community and legal organizations, police) in a discussion about what changes are required to the system. We know that the history of developing Ontarios police complaints process has been long and contentious. We have tremendous experience and data to draw from. We know (and Hon. LeSage heard from many participants in this review) that the time limit for making a complaint, fear of reprisal, lack of support to make a complaint, lack of police co-operation with investigators and a historical lack of resolution of individual as well as systemic problems both discourage people from making complaints and undermine the effectiveness, safety and credibility of complaints processes. Therefore:

* Returning to a previous system, in particular, the pre-1997 system, is not an option.
* A third party complaint process is essential.
* The time limit for making a complaint must be extended.
* People who want to make a complaint must have the option to file the complaint in a safe, informed environment that is not a police station.
* All stages of the process must be accessible for persons with disabilities, people who face language barriers and people from other marginalized communities who face additional barriers to making a complaint.
* Measures must be in place to guarantee that there will be no retaliation against people who make a complaint. Any attempts at reprisals should be strongly sanctioned.

"The complaints process must not only be fair and unbiased, it must appear to be fair and unbiased. Therefore, in addition to the previous components:

* The process must be independent of the police. This includes initial documentation of the complaint, investigation of the complaint and monitoring of the implementation of disciplinary action. An independent body should have the power to follow up on disciplinary decisions, including intervention to ensure policy changes and training recommendations actually occur.

* The standard of proof required to support a complaint should not be as high as the standard of proof for a criminal case. "

6. Blink: High speed chases and more

A new book by Malcolm Gladwell, a writer for the New Yorker, is titled Blink: The Power of Thinking without Thinking. The book reports on how individuals make snap decisions, many of which are good decisions. Gladwell also looks at the factors which lead to snap decisions which are very bad, such as those made under the weight of prejudice (about skin colour, clothes, accent, and so forth) or expectation.

Gladwell has interesting things to say about two policing items. He looks at high-speed police chases in the section on how heart beats per minute affect performance. A heart beat of between 115 and 145 beats per minute (the normal heart beat is about 70 per minute) can result in extraordinarily good decisions by an expert, and is thought to be what fuels very fine performances by athletes. But above 145 beats per minute, "complex motor skills start to break down&. Behaviour becomes inappropriately aggressive."

And that's what apparently happens in high speed police chases. Gladwell quotes a former Los Angeles police officer about going through neighbourhoods at high speed. "Even if it is only fifty miles an hour. Your adrenaline and heart start pumping like crazy. It's almost like a runner's high. It's a very euphoric thing. You lose perspective. You get wrapped up in the chase. .. If you've ever listened to a tape of an officer broadcasting in the midst of a pursuit you hear it in the voice. They almost yell. For new officers, there's almost hysteria."

Gladwell notes, "This is precisely the reason that many police departments in recent years have banned high speed chases." (All quotes are found on pages 225 - 27.)

Gladwell also has a small section about the dangers of two officer police cars because split second decisions can often result in people relying on prejudice and stereotypes. "With two officers, encounters with citizens are far more likely to end in an arrest or an injury to whomever they are arresting, or a charge of assaulting a police officer. Why? Because when police officers are by themselves, they slow things down, and when they are with someone else they speed things up."

He quotes someone in the security business: "'All cops want two-man cars. You have a buddy, someone to talk to. But one-man cars get into less trouble because you reduce bravado. A cop by himself makes an approach that is entirely different. He is not as prone to ambush. He doesn't charge in. He says, 'I'm going to wait for the other cops to arrive.' He acts more kindly. He allows more time.'"

"For this very reason, many police departments have moved, in recent years, toward one-officer cars instead of two-," writes Gladwell. (All quotes, p. 233 - 34.)

These sound like good ideas for the Toronto police force to explore - putting an end to high speed police chases, and dispensing with the rule that requires two-man cruisers after 5 pm. Both decisions would result in safer conditions for officers, better policing for the public, and probably lower costs.

7. Subscribe to the Bulletin.

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