Consultation Response on Street Checks

Transcription

1 Consultation Response on Street Checks August 2015

2 OFIFC Consultation Response on Street Checks 2

3 Ontario Federation of Indigenous Friendship Centres Consultation Response on Street Checks Introduction In July 2015 the Ontario Government commenced an online consultation regarding regulating street checks. In response, the OFIFC has prepared a submission which briefly outlines our position, answers the ministry s 15 consultation questions, and provides key recommendations for consideration. In reviewing our submission, it should be noted that in September 2015, the OFIFC will partner with the Human Rights Legal Support Centre to facilitate training sessions on the Ontario Human Rights Code in Friendship Centres. The trainings, which are supported by the Law Foundation of Ontario s Connecting Communities Grant, aim to train Friendship Centre workers and other community leaders on accessing the provincial Human Rights system as well as to initiate discussions about the discrimination that Aboriginal people face in their communities. A final report will summarize our training findings, including Aboriginal people s experiences with front-line services such as local law enforcement. These findings, along with the Ontario Human Rights Commission s upcoming review of its policy on racial profiling, should also be considered in light of the government s plans to review and regulate street checks. About the Ontario Federation of Indigenous Friendship Centres The Ontario Federation of Indigenous Friendship Centres (OFIFC) is a provincial Aboriginal organisation representing the collective interests of twenty-eight member Friendship Centres located in towns and cities throughout Ontario. The vision of the Aboriginal Friendship Centre Movement is to improve the quality of life for Aboriginal people living in an urban environment by supporting self-determined activities which encourage equal access to, and participation in, Canadian society and which respects Aboriginal cultural distinctiveness. The OFIFC administers a number of wholistic, culture-based programs and initiatives which are delivered by local Friendship Centres in areas such as justice, children and youth, health, family support, long term care, healing and wellness, education, and employment and training. Friendship Centres respond to the needs of tens of thousands of community members requiring culture-based and culturally-appropriate services every day. The Friendship Centres represent the most significant off-reserve Aboriginal social service infrastructure across Ontario and are dedicated to achieving greater participation of all urban Aboriginal peoples in all facets of society, inclusive of First Nation Status/Non- Status, Métis, Inuit and all other people who identify as Aboriginal. Our Position on Street Checks OFIFC Consultation Response on Street Checks 3

4 The OFIFC is strongly opposed to the current practice of street checks on the grounds that they impede and overstep individuals fundamental Charter rights and disproportionately target minority communities, including Aboriginal communities. Street checks are common practice in many Ontario municipalities despite cumulative evidence from targeted individuals, community advocacy groups, and human rights defenders that street checks disproportionately target people of colour, erode communities trust in law enforcement, and break down the potential for relationship-building and strengths-based community safety planning. The OFIFC maintains that the harm caused by street checks far outweighs any of the asserted advantages, and it can be argued that the practice actually contributes to making communities less safe. We support the ongoing work of the Ontario Human Rights Commission (OHRC) in calling for the end of street checks and in demanding higher standards of conduct for police interactions with the public. The OHRC launched an inquiry into the use of street checks over a decade ago, producing the 2003 report Paying the Price: The Human Cost of Racial Profiling. 1 The report provided evidence of the ineffectiveness of racial profiling procedures such as street checks, noting that they are neither an efficient nor effective approach to fighting crime. 2 Since the release of this report, the OHRC has continued to advocate against the practice. In 2015, Interim Commissioner, Ruth Goba, called for the end of the Toronto Police Service s well-publicized use of street checks in a Toronto Start editorial. The public letter clearly stated: [the] procedure has been to stop people disproportionately in part because of their skin colour. This practice is corrosive and demeaning in our opinion, it amounts to racial profiling and is illegal. 3 While street checks have been highly publicized in the city of Toronto, they are also implemented in municipalities throughout the province and similarly affect marginalized communities across Ontario. Street Checks and Aboriginal Communities The OHRC s 2003 Paying the Price Report devotes an entire section 4 to highlighting how racial profiling affects Aboriginal communities in a broad number of contexts and scenarios. The section provides feedback from Aboriginal participants which illustrates the 1 Ontario Human Rights Commission. (2003). Paying the Price: The Human Cost of Racial Profiling. Retrieved from: 2 Ontario Human Rights Commission. (2003). Paying the Price: The Human Cost of Racial Profiling Racial Profiling Doesn t Work. Retrieved from: 3 Ontario Human Rights Commission. (2015). Opinion Editorial: Political will needed to end carding. Retrieved from: 4 Ontario Human Rights Commission. (2003). Paying the Price: The Human Cost of Racial Profiling Racial Profiling Doesn t Work Retrieved from: OFIFC Consultation Response on Street Checks 4

5 palpable level of distrust that Aboriginal community members can have of law enforcement. The OHRC places this feedback into a wider systemic context succinctly: The negativity which many people feel about how they will be treated leads them to avoid using public institutions, like the police, to get assistance when it is appropriate. Aboriginal (and other) communities consistently report that while they frequently feel the brunt of greater law-enforcement attention from the police, they also receive less peace-keeping and other types of assistance. 5 In many communities across Ontario, Aboriginal people are disproportionately targeted by street check and carding practices. In 2014, the London Police Service conducted 8,400 street checks, recording interactions with 14,000 individuals 5.3 percent of whom were Aboriginal. 6 According to the 2011 National Household Survey, less than 2 percent of London s population is Aboriginal. 7 Noting such disproportionately high rates of targeted street checks, municipal councillors and concerned citizens in London have called on police to end the practice. 8 Prompted by the results of a 2002 local study on racism and policing in Thunder Bay, the Thunder Bay Police Service engaged community members on a Diversity in Policing Project, asking participants the majority of whom were Aboriginal 9 to provide feedback on how to improve relationships between police and communities. During the initial needs assessment process, focus group participants identified race-based police behaviours such as profiling, race-based treatment, and targeting neighbourhoods as key issues that police must stop. 10 The 2007 project report found that: the perception of racial profiling was prevalent among interviewees and focus group participants and across all groups. This percentage, nearly one quarter of all comments, and the prevalence of profiling-related responses highlights the importance of stopping the practice and the perception of race-based policing. 11 University of Toronto Criminologist Scot Wortley undertook the first study of racial profiling in Canada in The research project focused on the Kingston Police Service, tracking racial statistics for each individual stopped by police over the course of one year. The study found that police in Kingston were 1.4 times more likely to stop an [A]boriginal 5 Ibid O Brien, Jennifer. (June 18, 2015). Unsolved London homicide and sexual assault cited as examples where carding can prove beneficial. London Free Press Online. Retrieved from: 7 City of London Official Website. (September 2014). Aboriginal People. Retrieved from: Peoples.aspx 8 O Brien, Jennifer. (June 18, 2015). Unsolved London homicide and sexual assault cited as examples where carding can prove beneficial. London Free Press Online. Retrieved from: 9 Desmoulins, Leisa. (2007). Diversity in Policing Project: Phase 1 Report. 7. Retrieved from: 10 Ibid Ibid. 9. OFIFC Consultation Response on Street Checks 5

6 [person] than a white person. 12 At the time of the study s release, Professor Wortley noted the importance of tracking statistics and monitoring and evaluating the way police interact with the public to shed light on such high rates of racial profiling. 13 In many major Ontario municipalities such as Hamilton 14 and Ottawa, 15 the debate about tracking and sharing race-based carding statistics has only just begun with police services reluctantly sharing their collected data after years of public requests. 16 As the public conversation about street checks has reignited with the province s call to regulate the practice, Professor Wortley has recently cautioned that it is not enough for the forces to just keep the data they must commit to analysing and sharing the results. 17 In many communities across the province, Aboriginal people are disproportionately targeted by police, but it is unclear whether data tracking these engagements is collected. We know that in municipalities such as Kenora, Sioux Lookout, and North Bay, among many others, Aboriginal people are targeted by law enforcement on a regular basis. 18 The over-policing of Aboriginal communities has been a significant contribuitory factor to the overrepresentation of Aboriginal people within the justice system. The OFIFC has documented anecdotal evidence of the unrelenting targeting of Aboriginal people by law enforcement through our work with Friendship Centres across the province. While law enforcement engagement practices vary, they can often take the same problematic form as street checks: they are unwarranted, arbitrary, and discriminatory in nature. In many instances, community members have shared instances of harassment and explicit racism by police. In northern communities where provincial police officers can often be stationed for training or for remedial purposes, officers short tenures and lack of familiarity with the communities spur these behaviours. Aboriginal community members have shared feelings of despair or powerlessness in reporting complaints, often noting that the systemic nature of the issue of discrimination and racial profiling by police which is engrained in the culture of law enforcement must be fundamentally reformed. The OFIFC recommends an end to the current practice of street checks and other forms of unwarranted over-policing and scrutinizing of targeted groups. We are calling for a radically different approach to police interactions with the general public that begins with trust-building and is focused on repairing damaged relationships with Aboriginal 12 CBC News Online. (May 2005). Police stop more blacks, Ont. Study finds. Retrieved from: 13 Ibid. 14 Bennett, Kelly. (June 2015). Police board wants answers after eye-opening street check report. Retrieved from: CBC News Online. (June 2015). Charles Bordeleau, Ottawa police chief, says carding stats don't include race. Retrieved from: 16 Hayes, Molly. (July 2015). Hamilton police have carded 9,000 since Hamilton Spectator Online. Retrieved from: 17 Bennett, Kelly. (April 2015). Police street stops: Making the case for keeping race data. Retrieved from: Ontario Federation of Indigenous Friendship Centres. ( ). Annual Integrated Field Visit Reports. Anecdotal reports shared through Friendship Centre and community interviews. OFIFC Consultation Response on Street Checks 6

7 communities and minority communities. There is significant work to be undertaken on the part of police services in communities across Ontario to regain the trust of citizens who are the constant targets of police harassment and whose rights have been routinely violated by police. On MCSCS consultation website a street check scenario is provided which depicts an individual apparently loitering, late at night, in an area that has been experiencing an increased number of break-ins. 19 MCSCS suggests that a police officer should be able to ask the individual what they are doing there, and ask for their name and other information to identify them information that could be saved in a police database to be monitored. 20 The ministry clearly explains that street checks are unrelated to specific criminal investigation or police function 21 and it is with this understanding that we can assume that street checks are arbitrary in nature, are largely unjustified by police, target individuals from lower socio-economic neighbourhoods, and according to consistent police data are highly discriminatory against people of colour. It is for these reasons that we are calling for an end to the current practice of street checks. Furthermore, we would suggest that the scenario provided by MCSCS is set up to provide a favorable angle on the street check discussion by correlating the activity of a law-abiding community member with local break-ins and framing the practice of street checks as contributing to community safety efforts when we know this to be the opposite. 22 If trustbuilding and mutually-respectful relationships had been forged by police in the community, the practice of interacting with community members and community groups would not require confrontation and monitoring by police. We understand the need for police interactions with the public to ensure community safety, but we recommend that police efforts begin with meaningful engagement that is strengths-based to regain the confidence that has been lost. In addition to the need for increased relationship-building and positive community interactions with police, we are calling for the end of unjustified questioning and monitoring by police. Any police questioning must be: a) in line with the Charter of Rights and Freedoms and Ontario Human Rights Code; b) based on informed consent; c) directly related to an active investigation that is clearly communicated to the individual; and must ensure that, d) associated information is stored in a sealed police investigation database that is unconnected to an individual and never to appear in an individual s criminal or mental health records. Further recommendations and feedback are provided in the answers to each consultation question that follow. 19 Ministry of Community Safety and Correctional Services. (August 6, 2015). Ontario Proposed Regulation for Street Checks Consultation Discussion Document. Retrieved from: 20 Ibid. 21 Ibid. 22 Ontario Human Rights Commission. (2003). Paying the Price: The Human Cost of Racial Profiling Racial Profiling Doesn t Work. Retrieved from: OFIFC Consultation Response on Street Checks 7

8 MCSCS Consultation Questions Defining street checks a. How would you define a street check? Street checks are a practice by police to arbitrarily stop, question, and record the identity of, and interactions with, innocent individuals. A street check is not directly tied to a criminal investigation nor is it a function of police. The practice is not regulated provincially, and therefore standards and accountability measures vary widely across the province and in many instances, contravene the Charter of Rights and Freedoms and violate the Ontario Human Rights Code. b. When should a police officer be allowed to question a member of the public and then record that information in a database? Police must be able to disclose reasonable grounds for questioning a member of the public and must inform the individual of their rights to walk away from police without responding if they so choose. Members of the public must also be informed about how the information ascertained by police will be stored and used. Any police questioning that is recorded in a database must be: a) in line with the Charter of Rights and Freedoms and Ontario Human Rights Code; b) based on informed consent; c) directly related to an active investigation that is clearly communicated to the individual; and must ensure that, d) associated information is stored in a sealed police investigation database that is unconnected to an individual and never to appear in an individual s criminal or mental health records. c. Are there unique issues to consider when addressing street checks of young people under the age of 18? Yes. Young people under the age of 18 are less likely to know their rights when interacting with police and are therefore more susceptible to forfeiting their rights in an attempt to comply with authority figures demands. In complying with street checks, interactions with police are tracked in young people s criminal records through police databases. While street check information is non-criminal in nature, its presence on a criminal record check for employment, education, and volunteering applications may become a deciding factor for these opportunities. When young people undergo multiple street checks and information on a young person is tracked each time sometimes appearing on criminal record checks the negative consequences for employment and educational prospects is 23 Ministry of Community Safety and Correctional Services. (August 6, 2015). Ontario Proposed Regulation for Street Checks Consultation Discussion Document. Retrieved from: OFIFC Consultation Response on Street Checks 8

9 heightened. Furthermore, these practices fuel young people s antagonism and feelings of distrust against the police. 2. Standards for conducting street checks a. What type of training should police officers receive in order to conduct street checks? How often should police officers be required to take this training? Who within a police service should receive this training (for example, new recruits, front-line officers, supervisors)? The current practice of street checks must be ended across the province. We are calling for a radically different approach to police interactions with the general public that begins with trust-building and is focused on repairing damaged relationships with Aboriginal communities and minority communities. We understand the need for police interactions with the public to ensure community safety, but we recommend that police efforts begin with meaningful engagement that is strengths-based to regain the confidence that has been lost. Any training on interacting with the public must be in line with the Charter of Rights and Freedoms. In all interactions with the public, any attempt to collect information from an individual by police must be prefaced with the disclosure of reasonable grounds for questioning a member of the public and must inform the individual of their rights to walk away from police without responding if they so choose. Training on regulated standards for community interactions must be delivered to all police officers who interact with the public on a regular basis as well as supervisors and directors. Furthermore, Aboriginal cultural competency training that is conducted in-person, by a reputable Aboriginal organization, should be delivered to all front-line and supervisory police officers, in all jurisdictions across the province. b. Should police officers be required to collect personal and demographic information during a street check (such as name, date of birth, address, race)? In instances where members of the public are provided reasonable grounds for being questioned and consent to comply with police questioning, it is imperative that personal and demographic information is collected in a standardized way across the province and shared publicly according to Open Data 24 principles, along a set schedule. Information related to a questioned individual s age, race, and residence that is stored in a sealed database which is not connected to an individual s personal criminal or mental health records should be collected only with a legislated requirement for this information to be both collected and shared across the province in a standardized manner. As per Open Data principles, this information should be accessible to, and analyzable by, the public. 25 Demographic information about 24 Government of Ontario. (March 2014). Open by Default: A New Way Forward for Ontario. Retrieved from: 25 Ibid. OFIFC Consultation Response on Street Checks 9

10 individuals questioned by police should no longer be hidden by police services 26 or relegated to costly Freedom of Information Act requests. Furthermore, it is recommended that in each recorded public interaction with police, police be required to also document that they have conducted their interaction according to the standardized process that is Charter compliant. c. Should there be limitations on the types of information police officers are permitted to collect during a street check? Please describe. The current practice of street checks must be ended across the province as any interactions with the public must be in line with the Charter of Rights and Freedoms. Any information garnered by police through interactions with the public should be stored in a sealed police investigation database that is unconnected to an individual and never to appear in an individual s criminal or mental health records. d. What information should be communicated by a police officer to an individual during a street check? When should that information be communicated? Are there any challenges in communicating this information during a street check? The practice of street checks must be ended across the province as any interactions with the public must be in line with the Charter of Rights and Freedoms. In all interactions with the public, any attempt to collect information from an individual by police must be prefaced with the disclosure of reasonable grounds for questioning a member of the public and must inform the individual of their rights to walk away from police without responding if they so choose before any questions about a person s identity or circumstances are asked. 3. Oversight a. If police services are required to report on their compliance with a regulation concerning street checks, who should receive the report? What details should be included in those reports? Police compliance with the Charter of Rights and Freedoms in all interactions with the general public should be overseen by internal police supervisors with an annual compliance report submitted to the Ministry of Community Safety and Correctional Services (MCSCS) for ensured accountability. The report should provide localized statistics documenting of the number of police interactions with the public by each police service, the demographic information collected through each service s interactions, and the rate of officers standardized compliance in interacting with the public. In receiving these three key statistics from 26 Hayes, Molly. (July 2015). Hamilton police have carded 9,000 since Hamilton Spectator Online. Retrieved from: OFIFC Consultation Response on Street Checks 10

11 police services, MCSCS will be able to ascertain: the overall number of interactions in each municipality; the rates of interactions with individuals from different communities and age ranges; and the rate at which police are conducting interactions in a manner that is complicit with the Charter. b. How should the requirements of a regulation concerning street checks be enforced? Who should be responsible for ensuring compliance? Standardized processes for interacting with the public that are Charter-compliant and not arbitrary in nature should be enacted by government through very specific legislation and enforced by the Ontario Association of Chiefs of Police (OACP) and each local municipal police service. Oversight should be shared between the OACP and the Minister of Community Safety and Correctional Services. 4. Public Complaints a. Should police officers be disciplined if they act improperly while conducting a street check? Yes. Standardized processes for police interactions with the public that are Chartercompliant and not arbitrary in nature must be enforced provincially. In instances where police officers continue to administer street checks as they are currently being imposed, officers should be disciplined. Acting improperly should include any interactions that are arbitrary in nature, do not provide a member of the public with reasonable grounds for being questioned, and do not inform a member of the public of their rights not to speak to the officer. 5. Management of Information Collected a. Should information collected from the public be stored for future investigative purposes? Any information garnered by police through interactions with the public that may be helpful for future investigative purposes must not be connected to, or disclosed on, an individual s criminal record. If this information is deemed useful for future investigations, it should be stored in a sealed police investigation database that is unconnected to an individual and never to appear in an individual s criminal or mental health records. If this is information that is made available to individuals or an organisation outside the police (i.e.: for research purposes), names and other identification must be removed. b. Should information be collected during a street check be reviewed before the information can be stored in a database? If so, who should conduct this review and what criteria would need to be met before the information could be stored? Yes. A supervisor with training and knowledge of the standardized requirements for police interactions with the public and compliance with the Charter of Rights and Freedoms should review information that can be stored in a database that is sealed OFIFC Consultation Response on Street Checks 11

12 from that individual s personal criminal record. c. How long should police be able to keep information collected through a street check if the information is not being used for a specific investigation? It must be ensured that this information is stored in a database that is sealed from an individual s personal criminal record. Any information stored in a sealed database that is only used for investigative purposes and not connected to, or disclosed on, an individual s personal criminal record should be deleted after five years of inactivity. d. How might police services address historical collection of information (i.e., information already stored in databases prior to any provincial rules being put in place)? Any information collected through the unregulated process of street checks to-date should be disposed of. This information has been ascertained in ways that cannot be verified as legal, and which have, and can continue to, damage individuals livelihoods and compromise communities trust in law enforcement. 6. Other Issues a. Are there any additional key areas the government should consider regulating that relate to the practice of street checks? Please describe. It is recommended that the process of regulating interactions between police and members of the public is closely and logically tied to the recently announced revision to Criminal Record Check legislation and that both are fundamentally grounded in the Charter of Rights and Freedoms. OFIFC Consultation Response on Street Checks 12

13 Recommendations The OFIFC appreciates the opportunity to provide feedback on the government s regulation of interactions with members of the public. We firmly oppose the current practice of street checks on the grounds that they impede and overstep individuals fundamental Charter rights and disproportionately target minority communities, including Aboriginal communities. The regulation of interactions between police and members of the public must be drastically diverted from the current practice of street checks. In summary, it is recommended that: 1. The current practice of street checks is ended across the province. 2. A strategy is developed for police services in all jurisdictions to build meaningful relationships with the communities they serve in an effort to reduce tensions and rebuild trust. Police-initiated protocol agreements with Aboriginal organizations at the community-level be a mandatory part of this work. 3. Interactions between police and the general public are standardized and regulated in compliance with the Canadian Charter of Rights and Freedoms and Ontario Human Rights Code with assurance that: Police disclose reasonable grounds for questioning a member of the public and inform the individual of their rights to walk away without responding if they so choose before any questions about a person s identity or circumstances are asked. Individuals are informed about how the information ascertained by police will be stored and used. Police are required to document that they have conducted their interaction according to the standardized process that is Charter-compliant. A specific fund be set up to support legal action aimed at maintaining a sufficiently high standard of performance by police. 4. Any information garnered by police through interactions with the public that may be helpful for future investigative purposes must not be connected to, or disclosed on, an individual s criminal record. Information related to a questioned individual s age, race, and residence should be collected with a legislated requirement for this information to be both collected and shared across the province in a standardized manner annually. As per Open Data principles, this information should be accessible to, and analyzable by, the public. OFIFC Consultation Response on Street Checks 13

14 5. Training on interacting with the public must be in line with the Charter of Rights and Freedoms and Ontario Human Rights Code. Training on standards for community interactions must be delivered to all police officers who interact with the public on a regular basis as well as supervisors and directors. Furthermore, Aboriginal cultural competency training that is conducted in-person, by a reputable Aboriginal organization, should be delivered to all front-line officers as well as law enforcement management, in all jurisdictions across the province. 6. In instances where police officers continue to administer illegal street checks as they are currently being imposed, officers are to be disciplined. Discipline is warranted for any interactions that are arbitrary in nature, do not provide a member of the public with reasonable grounds for being questioned, and do not inform a member of the public of their rights not to speak to the officer. 7. Any information collected through the unregulated process of street checks to-date be disposed of. OFIFC Consultation Response on Street Checks 14