Toronto Police Accountability Bulletin No. 5

November 1st 2003

1. Civilian oversight of the police
2. Strengthening the Toronto Police Service Board
3. Police and mental health issues
4. More on political endorsements by the Police Association
5. Subscribe to the Bulletin

1. Civilian oversight of the police

The new Minister of Community Safety and Corrections, Monte Kwinter, spoke out a few days after his appointment to indicate he wished to see an improved complaints' system for the police.

At this point it is unclear how quickly the government will proceed or what exactly it will do, but some are already trying to define the basic changes needed. The Ottawa Witness Group  it was established after police were heavy-handed at demonstrations in Ottawa in June 2002  has written the minister stating, in part,

"After presenting two well-thought out reports to the [Ottawa] Police Services Board, our concerns about effective oversight of the police have been heightened. Despite discussion of our analysis, the Board has taken no evident further action. The remedies to the concerns, we believe, need to be systemic, with clearer mandates and resources for these boards to ensure transparency and community involvement in policing. Boards need, for example, to make policing policies, such as those governing the use of pepper spray and tasers, public, and generally to take a more active role in ensuring community contributions to those policies.

"Independence for the boards begins with legislation, and we are encouraged by your openness to making certain changes to the Ontario Police Services Act. Our members believe that reviewing the legislation would provide all Ontarians with the opportunity to discuss the relationship between police services and their communities. That process in turn would both educate us all on these matters and provide the legitimacy that the current policing framework lacks."

The Toronto Police Accountability Coalition has also written the minister  and Attorney General Michael Bryant who is also responsible for this issue - stating that:

"We believe the oversight board established should include the following characteristics:

  • the board should be civilian in nature
  • it should be independent of the police
  • its mandate should be broad, including responsibility of processing and reviewing complaints against the police, and review of a police service's response to recommendations contained in audits, inquests, and similar formal reports
  • it should have the power to investigate and recommend changes in police policy and practice
  • it should possess the ability to deal with systemic issues and remedies
  • it should be able to deal with third party complaints.

"A board with these characteristics should be established for Toronto and other large cities."

Also of interest is the public meeting, sponsored by TPAC, scheduled for Thursday, November 27, entitled "A Police Complaints System That Works for the Public". The meeting will be held at the North York Council Chambers, 5100 Yonge Street, beginning at 7:30 p.m.

Professor Marianna Valverde, of the Centre of Criminology at the University of Toronto, will speak, as well as Professor Scot Wortley of the Centre of Criminology. Prof. Wortley is knowledgable of complaints systems in other countries. The evening will be chaired by former mayor John Sewell.

It is hoped that this forum will be an opportunity for those present to come to a consensus on the kinds of changes that are required and the strategy needed to help the government enact this legislation.

2. Strengthening the Toronto Police Service Board

The newly-elected Toronto City Council is about to make its first batch appointments, among which are appointments to the Toronto Police Service Board. The Board consists of seven members, four of whom are appointed by Toronto City Council: the Mayor or his representative, two councillors, and a citizen-appointee. It is expected that in early December the new council will decide on the three council representatives for the Toronto Police Service Board. Since Mayor-Elect David Miller has said he will not be serving on the Board for the first 18 months.

The Toronto Police Accountability Coalition has sent a letter to all members of the new city council pointing out the importance of the Board and making the following statement:

"We believe Council appointees to the Toronto Police Service Board, whether Council Members or citizens, should be individuals who express a strong public commitment to the following principles:

  1. That the full budget for the Toronto Police Service Board include a line by line breakdown of expenditures and that it be made available publicly before it is considered by City Council.

  2. That the provincial government be petitioned for legislation to create a system of independent civilian review of complaints against the police.

  3. That the Board take effective action to encourage debate about police policy, including holding regular meetings with the community and producing position papers available for discussion.

  4. That the time (and perhaps the location) of meetings of the Toronto Police Service Board be changed to be more accessible to the general public.

  5. That the Board be committed to full and effective implementation of recommendations of inquests (such as the Edmond Yu inquest), audits (such as the 'Jane Doe' audit by the city auditor of response to sexual assaults), and other formal procedures affecting police policy and practise."

3. Police and mental health issues

The recent dismissal of manslaughter charges laid against four police officers flowing from the death of Otto Vass reminds one of the 1999 coroner's jury recommendations from the inquest into the death of Edmund Yu. Yu, who suffered from mental illness, was killed by police on a streetcar in 1997. Vass, who also suffered from mental illness, died outside a Seven-Eleven store while being forcibly restrained by police.

Much of the trial involved Vass' mental state and police reaction to whatever Vass' actions were (something not entirely clear, even after the trial.). What is very clear, however, is that the recommendations of the coroner's jury flowing from Yu's death six years old, have apparently had very little impact on police behaviour.

In the 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. "

The most significant lesson from the unfortunately and unnecessary death of Otto Vass is that these approaches to crisis resolution were not followed. Many think that the not-guilty verdicts work against the necessary change in police behaviour to ensure their actions are protective towards the mentally ill, rather than the mentally ill provoking police action ending in death.

4. More on political endorsements by the Police Association

On November 13 the Law Union of Ontario and the Criminal Lawyers Association both presented briefs to the Toronto Police Services Board asking why charges had not been laid against the directors of the Toronto Police Association after the TPA endorsed candidates in the recent provincial and municipal elections. (for details, see Bulletin No. 4)

One of the Board's lawyers advised on October 30, 2003 that "Due to conflicting legal opinions and the uncertain state of the law surrounding this issue, including the ambiguity of the Police Services Act Regulation, the chief has referred this matter to the Ontario Civilian Commission on Police Services." Paul Copeland, speaking for the Law Union, wondered what those "conflicting legal opinions" actually were  it seemed clear the Board had two such opinions - and why the Board refused to make them public.

Copeland also noted that the Board had used this same tangentory tactic in 2000 when it was asked to apply the law, and it wrote to the Solicitor General for advice. The Solicitor General replied on October 5, 2000 that "It is not my role under the Police Service Act to apply the legislation in the local context. That is your responsibility."

A lack of clarity about the law, noted one criminal lawyer caustically, never stopped the police from laying charges against any of his clients. Another noted that the courts give the best interpretation of the law in cases where there is doubt, although it seems there is little doubt about the intention of the law in this case, as pointed out by Albert Cohen, now the City Solicitor for Toronto. (His opinion is summarized in Bulletin No. 4)

The Board decided to confirm its request that OCCOPS give it [another] interpretation of the law, and to consider stating a case to the courts for an interpretation of the law. It also agreed to make public the conclusions of the two legal opinions it had received. These conclusions were released on November 20 in a terse statement reading:

"Mr. Michael Hines of Hicks Morley Hamilton Stewart Storie, in an opinion dated September 13, 2000 concludes that endorsement of candidates by the Association and/or members of the Association's executive is prohibited by Section 46 of the Police Services Act. Further, Mr. Hines concludes that although in accordance with the Collective Agreement the executive of the Association are on leaves of absence from the Police Service, they remain subject to the Code of Conduct under the Police Services Act and are subject to the lawful direction of the Chief of Police.

"The opinion also indicates that there are Charter of Rights and Freedoms issues; however, it was considered likely that the Act and Regulation would be upheld as being consistent with the Charter.

"In an opinion dated September 26, 2000, Mr. Ronald Manes of Torkin Manes Cohen Arbus, concluded that the Police Services Act and its Regulations prohibit endorsement of candidates by the Police Association. Although the legislation does not explicitly discuss police associations, it would be contrary to the purpose of the legislation to allow associations greater latitude to participate in political activities than that provided to individual officers, the Chief or the Board.

"The opinion mentions that there are Charter of Rights and Freedoms issues that could only be resolved by the courts."

So in fact there were never any 'conflicting' legal opinions. Lawyers on all sides agreed in 2000  three years ago  that the law made political endorsements by the Police Association an offence. The Board had no legal opinions saying that such endorsements were not contrary to the Police Services Act. The remaining question is why the Board and the chief decided not to enforce the law.

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