Speaker's Corner: Making police accountable long overdue (Law Times)

Law Times
Ombudsman Paul Dubé
Speaker's Corner
November 27, 2017

There are many communities that have for years decried a crisis of confidence in Ontario police. The province’s much-anticipated new omnibus policing legislation, packaged as the Safer Ontario Act, 2017, appears to have been met with general optimism — perhaps as much a measure of the broad need and desire for change as it is of the bill itself.

As members of the profession that preserves, promotes and protects the rule of law in our society, many lawyers and jurists have called for improvements to police oversight for decades. We should all take note of these proposed reforms and monitor their effectiveness in promoting police accountability and establishing the trust that is essential to policing by consent.

My team and I are among those cautiously welcoming the bill, since it proposes numerous reforms that our office recommended to the province in investigative reports dating back to 2008, as well as to Justice Michael Tulloch’s recent Independent Police Oversight Review.

These include, among other things: bringing all police oversight agencies under ombudsman jurisdiction; requiring them to collect demographic data (including race and mental health status on civilian interactions with police); creating standalone legislation to support and clarify the role of the Special Investigations Unit (which investigates serious injuries and deaths of civilians involving police); requiring police to co-operate with SIU investigations or face serious consequences; and requiring the SIU to report publicly on its investigations, including when it determines that charges against an officer are not warranted.

Our office made these recommendations to optimize the promise of civilian oversight first embraced by Ontario in 1990, when the SIU was born. The SIU was the first and only such body in Canada for nearly 20 years, completely independent and civilian-led, conducting investigations of police from start to finish, without police involvement. But over time, that spirit was tarnished by perceptions of a pro-police bias and a sense that, without sufficient legal force or political will behind it, the SIU was a toothless watchdog.

However, as substantial as it is, this bill is just as remarkable for what’s not in it.

For example, the way police interact with vulnerable people — those who are in crisis, due to drugs or a mental illness — must also be modernized. Their standard training for encounters with someone who is armed with any type of weapon is based on an outdated use-of-force model, which teaches police officers to establish authority and control of the situation by shouting commands. If the subject does not comply with those commands, officers are trained to proceed to using force, which may involve drawing and firing a weapon. De-escalation techniques — simply talking the person down or even just listening — are not part of their mandatory training, and they are not sufficiently emphasized within the use-of-force model they must follow.

After a lengthy investigation by my office that reviewed the circumstances of dozens of fatal police shootings of people in crisis, the hundreds of resulting recommendations by coroners’ juries over two decades and de-escalation techniques in other jurisdictions, I recommended in my June 2016 report — “A Matter of Life and Death” — that de-escalation techniques be made mandatory through a new regulation under the existing (and now soon-to-be-replaced) Police Services Act.

The previous provincial minister of Community Safety and Correctional Services recognized this and pledged to accept and implement my recommendations, but they left office five months later. Since then, there has been little visible movement on this issue.

In announcing the new bill, the current minister, Marie-France Lalonde, emphasized that it will support individual community plans to partner mental health and social services professionals with police in certain interactions. The government has said the new act “will ensure police education, training and standards are consistent across the province.” My office found this was not the case with de-escalation training; it varies widely from one police service to another.

However, the bill makes no specific mention of de-escalation. Like many others who have contributed their expertise and advice to the government’s lengthy consultations, I am encouraged by the promising direction of this ambitious new legislation, and I can only hope that this key missing piece — a new use-of-force model requiring officers to use de-escalation techniques before force wherever possible — will soon follow.

Since my report was released last year, at least four more police-involved deaths of vulnerable people in crisis have further galvanized calls for this change. Ontario already lags behind other jurisdictions in de-escalation training and models, but it could adapt those in use in B.C., parts of the U.S. and the U.K., where they have been proven effective.

Making police oversight bodies more accountable and transparent is long overdue, but to truly realize what the government calls the most significant transformation of policing in a generation, change must also happen on the front lines, where officers meet people in crisis face to face. That starts with training.

It is my hope that enhanced training on de-escalation will save lives by reducing the number of fatal police shootings of people in crisis. Measures to improve the encounters between police and some of the most vulnerable members of our society through de-escalation — enhancing the safety of all concerned — will go a long way to instilling confidence in police and result in fewer tragic cases being referred to coroners’ juries and the SIU.