Changes include elements which are crucial to process of identifying systemic barriers, OHRC said
The Ontario Human Rights Commission (OHRC) has expressed its support for Ontario’s proposed changes to the Equipment and Use of Force Regulation and the use of force report.
On September 30, The Ministry of the Solicitor General began seeking public feedback regarding its plan to amend the police use of force reporting requirements under the regulation and implement the modernized use of force report. The ministry invited all interested individuals and organizations to submit their input by October 30.
In its written submission, the OHRC said that changes to the regulation and the report signify progress since they are an important step forward in the ministry’s efforts to identify and address systemic discrimination in police use of force. It noted that changes include elements crucial to identifying systemic barriers. These elements include:
The OHRC also welcomed changes to the report form that allow it to capture important contextual information about use of force incidents, such as (a) demographic details about the officer who submitted the report, such as their age, race, and gender identity; (b) factors that informed the reporting officer’s perception of the subject’s race; (c) the subject’s perceived age and gender identity; (d) de-escalation options used by the officer; and (e) the level of physical control used.
“These amendments respond to some of the data collection and reporting issues identified in the OHRC’s second interim report ‘A Disparate Impact,’” the OHRC wrote. “This data will also help police services boards and oversight bodies advance their efforts to monitor use of force practices and identify disparities.”
Accordingly, the OHRC recommended measures to the ministry to ensure that changes result in “effective and meaningful change.” These measures are based on the OHRC’s experience advocating for robust data collection and reporting practices that meet obligations under the Human Rights Code.
First, the OHRC recommended that a comprehensive definition of use of force guide reporting requirements. It claimed that the present and proposed definitions of “use of force” that warrant reporting under the regulation are “too narrow, elevated, and do not accord with criminal law, police practices, or public perception of what constitutes force by the police.”
Second, the OHRC suggested expanding the scope of incidents subject to use of force reporting to include “lower-level” use of force, described as incidents where physical force used by officers did not result in serious civilian injury or death.
“The OHRC supports an amendment to s. 14.5 that will capture all instances where weapons or physical force is used, including coercive touches, such as wrist or arm locks, striking the subject with the hands or feet that may not result in injury,” the OHRC wrote. “Use of force that falls within the scope of this definition should be reported and considered by chiefs of police when they submit an annual report to their police services board or the Solicitor General pursuant to section 14.7(4) of the amended regulation.”
Third, the OHRC recommended identifying the following levels of force in use of force reports: (a) force (non-intentional, non de minimis touching); (b) force constituting bodily harm; and (c) lethal force.
“Statistics already show a disproportionate level of application of higher levels of force against Black, South Asian, East/Southeast Asian people, and persons with mental health issues,” the OHRC wrote. “The need to explain why lesser levels of force were not used will not only facilitate statistical understanding but may deter the application of higher levels of force.”
Fourth, the OHRC suggested expanding the scope of incidents subject to use of force reporting to handcuffs (mechanical restraints), physical restraints, or zip ties usage. The OHRC highlighted several incidents where officers have used restraints on members of Black and Indigenous communities that have attracted criticism from human rights tribunals, police disciplinary panels, and members of the public.
“These incidents and the findings that accompany them are consistent with ongoing concerns about systemic barriers and racial profiling by police services,” the OHRC wrote. “In response to this trend, use of mechanical restraints including handcuffs should be tracked by use of force reports along with relevant contextual data.”
Fifth, the OHRC recommended including additional contextual information about use of force incidents according to leading practices. It stressed that use of force reports should document which offence the subject was charged with and provide more information about the reason for the interaction (e.g., traffic stop, observed criminal activity, routine patrol) and whether there were grounds for detention or arrest if any.
Lastly, the OHRC suggested guiding the analysis required by s. 14.7 (4) of the amended regulation following human rights principles. Section 14.7(4) states that police chiefs must submit an annual report to their police services board which analyses data from use of force reports and identifies any trends.
The OHRC said that analysis and identification of trends should be conducted in a way that is consistent with the objectives of the Human Rights Code and the Data Standards for the Identification and Monitoring of Systemic Racism.
“The proposed amendments and OHRC’s recommendations will help ensure that there is robust human rights-based data collection, analysis, and reporting on use of force across the province to identify, monitor, and address discrimination,” the OHRC wrote.
