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A Contribution to the Debate on Civilian Control of
Police Powers in Toronto, 1980-1989.
A Paper Presented to: Investigating Crime And Apprehending Suspects: Police Powers and Citizens Rights, Conference Organized By The Society For The Reform of the Criminal Law, Sydney, Australia,
March 19th-24th, 1989
It is contended by Michael Valpy of the Globe and Mail, a major Canadian National Newspaper, that the Toronto Police Commission, the Toronto Police Force Commanders and the Toronto Police Union all refuse to acknowledge that there is a rift between the police and so-called "visible minorities". Yet in a recent poll by The Environics Group, nearly 50 percent of all those polled said the police should be doing a better job in that area as opposed to 37 percent who said the police were doing a good job in that area. On the overall 74 percent of the respondents said the Toronto police was good or excellent.
Environics found that the Ontario police force was composed of 92 percent white males; 5 percent white women; 2.3 percent visible minorities and 0.2 percent were aboriginals.1 These statistics are a backdrop to the recent strained relations in Toronto between the police force and "visible minorities", mainly black as a result of the police shooting to death of two black men in the Toronto area in 1988. One a disabled man, by the name of Lester Donaldson was shot in his apartment in August and the other, a 17-year old Michael Wade Lawson was shot while driving a stolen car in December. Two police officers were charged, one with manslaughter and other with aggravated assault for the Lawson killing. After six months of investigation one police officer was charged with manslaughter for the Donaldson killing.
These police shootings of blacks are reminiscent of several others that date back to 1978 when a black youth by the name of Buddy Evans was shot by the police. The police shooting to death of Albert Johnson in 1979 led to a near riot by the blacks in Toronto. These shootings have triggered in the black community in Toronto and in other quarters as well as elsewhere the possible need to have some kind of civilian control over the use of police powers. Are the police a law unto themselves? What could be done?
This paper is a contribution to that debate. It is mainly descriptive and is intended for readers who are not very familiar with the goings-on in Toronto between the police force and visible minorities. It does not claim to be an exhaustive statement on the issue.
Before I proceed, I have to add a caveat here in order to contextualize the issues I will be discussing: the media from which we learn most things that are going on around us including the turmoil between the Toronto police and visible minorities has a tendency to overblow some issues out of proportion to their actual gravity. I am not necessarily saying that the issue of the strained relations between the Toronto police and visible minorities has been overblown, I am suggesting that it is important to bear in mind that some issues are usually overblown by the media. Overblowing some issues is in fact inherent to the operations of the media just as ignoring or underplaying of some issues is also inherent to the media.2
Official Response
In the wake of the incidents mentioned above, the Solicitor-General for Ontario who is in charge of the police, struck a task force to examine police-minority relations and to make recommendations. The task force was named Race Relations and Policing Task Force (RRPTF). This task force started hearings in early February 1989. Several issues are being raised. One of the issues raised when the task force was announced was that there had been four similar studies in the past 10 years which had not brought about any improvements.3 Legislative moves have also not worked. Another issue debated in the hearings was whether the hiring of more visible minorities into the police force would improve the situation. It was noted that of the 2,000 police officers in Toronto, only 200 were from visible minorities. This obviously did not reflect Toronto's cultural mosaic.4 Some noted that hiring more visible minorities is not the answer because the hired police officers will in due course adopt a police mentality which is structural to the functions of policing. Even if this did not happen it is likely that minority police officers will be coerced into conformity, something that happens all the time. It was also suggested that more education may be the answer. It has also been mentioned that perhaps the police should not carry firearms as this may tempt them to use them unnecessarily. But the dominant opinion seems not to associate violence as emanating from the police. Police are not seen as using violence against the people. For example, in a major study sponsored by The John Howard Society of Canada, a major Canadian think tank, entitled Insights into Violence in Contemporary Canadian Society containing conference papers by prominent Canadian Crimmologists, both legal and sociological, I could only find two references in one paper to the possibility of police violence in the process of investigating violent crimes.5 The police are regarded as "legitimacy incarnate."6
International opinion on the carrying of firearms by law enforcement agencies seems to be more advanced than domestic Canadian attitudes on this issue. Article 3 for example of the United Nations Code of Conduct for Law Enforcement Officials stipulates, "Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty." One of the explanations for this article is that the use of firearms is considered an extreme measure and that every effort should be made to exclude the use of firearms especially against children. Firearms should not be used except when a suspected offender offers resistance or jeopardizes the lives of others.
These observations culled from international opinion are pertinent in the Canadian context. Albert Johnson in 1979 and Lester Donaldson in 1988 were both shot in their houses allegedly unarmed. Anthony Griffin, a black youth shot in Montreal in 1987 and Michael Wade Lawson, another black youth killed in Toronto in 1988 were both shot in the back, indicating they probably were running away and not posing any immediate danger to the police or to others. In all these cases and others, the use of the firearm was critical. Couldn't other methods have been used to effect the arrests?
Section 25(3) of the Criminal Code7 of Canada permits in criminal enforcement the use of as much force as is possible -- even that which leads to death to protect police officers or others. The Supreme Court of Canada has recently ruled that the safety of police officers or third parties can justify the use of force by the police. But the police must have grounds to believe a real threat of violence exists.8 However, force here should not be read to mean "to shoot to kill." Force is used in the context of executing a search warrant. But it is clear from the Criminal Code that if force leads to death or serious bodily harm, so long it was applied in order to preserve the lives of police officers or others it is justifiable. Uncalled for excessive force would attract criminal sanctions provided for in Sec. 26 of the Criminal Code. The difficult part is to determine or judge whether police officers can gauge correctly that the suspect or criminal is about to apply lethal force against them or others. Is uncontrolled force used easily when the police are pursuing a member of the visible minority? Members of the visible minority say this seems on the evidence to be the case.
Another position which is strongly supported by Alan Borovoy, the General Counsel to the Canadian Civil Liberties Association is to institute across the Province of Ontario civilian bodies that will oversee police conduct and practices.9 A modified civilian body already exists in Toronto. It has not been effective.
The rest of this paper discusses in summary form the history and politics of the plea of creating civilian bodies in Ontario to oversee police behaviour. I will conclude with my own suggestions.
Civilian Bodies and the Police
In this paper I am mainly concerned with civilian control or review of police powers in regard to police-visible minority relations. By civilian control or review of police powers I restrict to mean civilian run investigations and adjudications of alleged police misconduct. This means these roles are taken away from police forces. However the concern over police powers is broader than this: it encompasses control of police discretion, independent review of complaints against police, entrapment, exclusion of illegally-obtained evidence, civil and criminal proceedings and abuse of process.10 As already stated I will not concern myself with some of these broader issues except with that of independent review of complaints against the police.
A brief wider review is in order here. The broader context that attracted public outcry for civilian control of police powers has to be traced to the early seventies when massive wrongdoings by police forces, especially the Royal Canadian Mounted Police (RCMP) were uncovered. This in turn can be traced to the political crisis originating in Quebec. The RCMP wrongdoings led to major commissions, investigations, the most well-known being the McDonald Commission of Inquiry Concerning Certain Activities of the R.C.M.P.11 It was found that the RCMP had engaged in illegal activities which included break-ins, arson, buggings, theft of mail and documents, etc.12 The concern was that the police had become a law unto themselves with no accountability and without any effective independent control.
Hitherto the practice was that if there were any allegations against the police, the police would investigate themselves and would impose any sanctions internally. (This is still largely the case). This obviously was a suspicious practice from the point of view of those who suffered transgressions as police would likely protect their personnel from external forces. The Report of the Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure within the R.C.M.P. (1976) - The Marin Report did indeed sanction the status quo. It "favoured the retention of all stages of the investigation and adjudication within police hands but with the imposition of a Federal Police Ombudsman to oversee the system and ensure that justice was done to both the citizen and the police concerned."13 This was not accepted or followed.
An Ontario Provincial report, The Royal Commission Report into Metropolitan Police Practices (1976) - The Morand Report "favoured a system which would place more of the important decisions in hands not connected with the police."14 This was not followed either. A modified version is in place.
Professor Alan Grant of Osgoode Hall Law School posits 5 possible models for handling citizen-police complaints.15 The models are: (1) The "in-house" one, which entails that "the duty to record the complaint, to investigate and adjudicate upon it would be in the hands of the police."16 (2) The externally supervised "in-house" model. This model ensures that "the investigation and adjudication functions follow the "in-house" model but there is an external review factor built in at the end of the process."17 (3) The police investigation with independent adjudication model. This is where the "investigation of complaints would...be conducted by the police, but once the investigation was completed, the adjudication and disposition would be in the hands of a body independent of the police."18 (4) The independent investigation with police adjudication model. In this model, the investigation would not be in the hands of the police but would be conducted by investigators employed specifically for the purpose and make recommendations to the chief of police who would dispose of the case. (5) The last model Grant calls the "truly independent" model, where all facets of the complaint, from it initially being recorded until disposition, would be kept out of police hands entirely. This is the model I support.
Ontario has more of the "in-house" model i.e. the first model whereby investigation and adjudication is entirely in the hands of the police. Visible minorities distrust this model because they believe it white-washes police wrongdoing.
The shootings of members of visible minorities are obviously regarded as police wrongdoings. Because the police investigate themselves, most times except when there is public outcry, no charges are laid against alleged offending police officers. According to Edward Greenspan, a prominent Canadian Criminal lawyer, the shooting to death of Albert Johnson in 1979 was the first time in the history of Metropolitan Toronto police force that a charge of manslaughter was laid against an officer.19 It took six months to have a charge laid against the officer who shot Lester Donaldson. Why did it take such a long time to lay these charges? So far also, all police officers who are charged end up being acquitted. Are the courts also in on this?
The shooting to death of Albert Johnson in 1979 triggered a mass movement to make the police accountable.20 The police raid on Toronto gay bathhouses only fuelled the momentum for civilian review and control of police powers. Groups such as Working Group on Minority-Police Relations were formed. A more well-known group formed was a group called Citizen's Independent Review of Police Activities (CIRPA) which was formed in 1981. The aims of CIRPA were:
1)To systematically obtain and review allegations of police misconduct in Metropolitan Toronto.
2)To assist complainants in pursuing their allegations through the most appropriate channels.
3)To publish periodically statistics on the number and nature of complaints and on their disposition and also on counter-charges laid by the police. These statistics should include divisions, names and numbers of police officers.
4)To press for reforms to ensure that both complainants and police officers receive fair and impartial treatment.
5)To conduct research into and to press for needed reforms in the organization and conduct of the Metropolitan Toronto Police Force.
6)To give information to other sympathetic groups and individuals (e.g. lawyers) approved by the board of directors.
7)To be concerned with public education.
8)To initiate legal and other actions which are consistent with the goals of the organization as well as intervening in and sponsoring litigation.
CIRPA was criticized for being no more than a "pressure group of the farleft" "of like minded individuals, who had no patience with the views or interests of the larger public."22 But as McMahon and Ericson report, this citizen's group ended up by being incorporated into the States' Agenda, with very little teeth.23 The state was also busy at the same putting out reform packages to meet the crises and citizen's concerns. Some of the initiatives included the enacting of The Metropolitan Police Force Complaints Project Act, 1981, which set up the office of the Public Complaints Commissioner among other reforms. This Act was repealed in 1984 by the Metropolitan Toronto Police Force Complaints Act, 1984. Essentially the office of the Public Complaints Commissioner was to create a parallel complaints system against the police. Previously a person had to complain only to the police force. A person can now complain either through the Police Complaints Forum or the Public Complaints Commissioner. The major problem with the office of the Public Complaints Commissioner is that the investigation and adjudication is still in the hands of the police. The CIRPA has no independent power so it works through the Police Commission, the Public Complaints Commissioner and legal channels. It may as well not be existing. According to McMahon and Ericson the CIRPA has been overtaken by the "middle-class" types--lawyers etc. who may not be closer to the people who are at the receiving end of police misconduct.24
But at the end of the day any complaint by the public against a police officer would likely end up in one of four ways: dismissal of complaint; internal discipline of the officer involved; civil action against the concerned officer or criminal proceedings. Internal discipline is hard to monitor, given that even officers who are criminally charged and are in the public eye continue to work and be paid. All these methods of police control focus on the individual officer and not the police force. They thus do not lead to structural reform. All police officers who have been charged for shooting minorities have been acquitted. This may mean that even civil proceedings may not be successful. However, one of the major possible effects of civil and criminal proceedings is general deterrence against police abuse. Lack of convictions however will continue to cause concerns.
Lack of convictions may be because of the manner in which complaints are investigated and adjudicated--by the police themselves. It may be that the most effective system would be model 5 discussed above of citizen-police complaints system whereby initial investigation through to adjudication is out of police hands. This would be done by an independent body. This model is not likely to be accepted but in the final analysis it seems to me to be the best model to reduce tensions between the police and visible minorities. The police and the state have nothing to fear from the model as the judicial system will sort out impartially the baseless from the credible complaints.
The creation of a Race Relations and Policing Task Force by the Ontario Solicitor General on December 15, 1988 is a good beginning.
Its terms of reference are limited to the following:
1)The current training members of police forces receive as it relates to visible minorities.
2)Ways to improve this training and education both for recruits and on a continuing education basis.
3)The hiring practices and promotional processes including the establishment of employment equity programs.
4)Ways to improve the interaction of the police with the visible minority communities through the establishment of liaison officers, committees, community education programs and cross cultural training.
5)To examine ways in which a monitoring system may be established to provide for a regular review of the interaction between visible minorities and the police.
6)To review the policies and practices of the police relating to the use of force.
Given the numerous studies already undertaken, it is hoped that this will move the ground a little bit forward. I am in agreement with Robert Peel when he stated the following a long time ago:
"The test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with them."
"The ability of the police to perform their duties is dependent upon public approval of police existence, actions, behaviour, and the ability of the police to secure and maintain public respect."25
Endnotes
1The statistics in the first and this portion of the paragraph are summarized in Michael Valpy, "Problem Will Stay Until it is Admitted" Toronto Globe and Mail 24 January, 1989, p. A8. It is not only the police force that does not hire visible minorities, rather this trend is endemic in both the governmental institutions and the corporate world, see, Leslie Papp, "Minorities Excluded From Corporate Elite" Toronto Star, 5 February, 1989, p. B4.
2On media "over-coverage of" violence during the commission of a crime, See Anthony Doob, "Portrayals of Violence in the Mass Media" in Insights Into Violence in Contemporary Canadian Society edited by James M. Maclatchie (Ottawa: The John Howard Society of Canada, 1987) pp. 57-64.
3Timothy Appleby and Donn Downey, "Fear of Police has Ruined System" Globe and Mail, 2 February, 1989, p. A1.
4Ibid.
5Alan Grant, "Emerging Trends in Law Enforcement/Policing" in the above mentioned study edited by James M. Maclatchie, supra, note 2, pp. 355-360 at pp. 355 and 359.
6Maeve McMahon and Richard Ericson, "Reforming the Police and Policing Reform" in State Control: Criminal Justice Politics in Canada edited by R.S. Ratner and John L. McMullan (Vancouver: UBC Press, 1987) p. 38.
7R.S.C. 1985 c. (46)
8Genest v. R Lawyers Weekly, 10 February, 1989, p. 8 (not yet reported).
9Timothy Appleby, "Minorities Rejected by Police" Globe and Mail, 4 February, 1989, p. A6.
10See, Alan Grant, Intensive Programme in Criminal Law, Osgoode Hall Law School, Winter 1988, Chapter 3.57.
11(Ottawa: Minister of Supply and Services, 1979).
12See Ibid, and Globe and Mail, 5 June, 1978.
13Grant, supra note 10, Chapter 3.81.
14Ibid.
15Alan Grant, "The Control of Police Behaviour" in Walter Tarnopolsky (ed.) Some Civil Liberties Issues of the Seventies (Toronto: Carswell, 1975) pp. 74-111, excerpted in Grant, Ibid at 3.103.
16Ibid.
17Ibid.
18Ibid.
19Edward L. Greenspan and George Jonas, Greenspan: The Case For The Defence (Toronto: MacMillan, 1987), p. 177.
20Ibid p. 178. For a fuller study, see M. McMahon and R. V. Ericson, Policing Reform: A Study of the Reform Process and Police Institution in Toronto (Toronto: Centre of Criminology, University of Toronto, 1984).
21In supra, note 6, p. 42.
22Greenspan, supra, note 19, p. 183.
23Supra, note 6.
24Supra, note 6, p. 43.
25Sir Robert Peel, 1829 (founder of the modern police force in England) cited in Policing in Ontario for the Eighties: Perceptions and Reflections, Report of the task force on the racial and ethnic implications of police hiring, training, promotion and career development July 1980. Submitted to the Honourable Roy McMurtry, Solicitor General, p. 37-38.
Member Of:
Criminal Lawyers Association The Law Society Of Upper Canada
Last Modified: August 11, 2007
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