What to do about negative police interactions By

What to do about negative police interactions? By: Johanna Macdonald, SYLS Lawyer, JFCY Police Complaints Workshop for Youth Serving Agency Staff Thursday May 13 th, 2010, 9 -11: 30 am Evergreen Centre for Street Youth 381 Yonge Street, Toronto, ON M 5 B 1 S 1

Police Officers’ Oath The oath or affirmation of office to be taken by a police officer: I solemnly swear (affirm) that I will be loyal to Canada, and that I will uphold the Constitution of Canada and that I will, to the best of my ability, preserve the peace, prevent offences and discharge my other duties as (insert name of office) faithfully, impartially and according to law. So help me God. (Omit this line in an affirmation. ) Police Services Act, R. S. O. 1990, c. P 15 (PSA), Reg. 144/91, s. 2.

Principles 1. The need to ensure the safety and security of all persons and property in Ontario. 2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code. 3. The need for co-operation between the providers of police services and the communities they serve. 4. The importance of respect for victims of crime and understanding of their needs. 5. The need for sensitivity to the pluralistic, multiracial and multicultural character of Ontario society. 6. The need to ensure that police forces are representative of the communities they serve. PSA, s. 1.

Officer Duties • • • Preserving the peace Preventing crimes and providing assistance and encouragement to other persons in their prevention Assisting victims Apprehending criminals Laying charges and participating in prosecutions; Executing warrants; Performing the lawful duties that the chief assigns; Enforcing municipal by-laws; Completing the prescribed training. PSA, s. 42(1).

Code of Conduct A police officer commits misconduct if he or she engages in discreditable conduct including: • Fails to treat or protect a person equally without discrimination with respect to polices services because of that person’s race, ancestry, place of origin, colour, ethnic origin, family status, sexual orientation, creed, citizenship, colour, age, or disability; • Uses profane, abusive, or insulting language or is otherwise uncivil to a member of the public; • Suppresses a complaint against a member of the police force; • Is guilty of a criminal offence; • Acts in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force. PSA, Reg. 123/98, ss. 15(2)(a)(i), (viii), (xi).

Code of Conduct, con’t Some other examples of misconduct include: • Without lawful excuses, neglects or omits to perform a duty as a member of the police force; • Offers or takes bribes; • Makes an unlawful or unnecessary arrest (without sufficient cause); PSA, Reg. 124/98, ss. 15(c)(i), (f)(i), (g)(i).

Code of Conduct - Use of Force A police officer commits misconduct if: • Using any unnecessary force against a prisoner or other person contacted in the execution of duty; • Using a weapon and/or physical force resulting in medical attention, fails to fill out and submit a use of force report. PSA, Reg. 124/98, ss. 15(g)(ii); and PSA, Reg. 926, s. 14. 5.

What Negative Interactions?

What To Do? u Criminal u Charter u Civil charges? rights remedy? suit? u Human u Lodge rights hearing? a complaint? u Advocacy projects; lobby for change?

Evidence u Regardless of your avenue of redress, evidence is essential! Relevant evidence includes: – – – Identifying notes Pictures and videos Witnesses Medical reports Police reports Estimates (for example, clothing or furniture repair costs) – Affidavits

Evidence Tips – Identifying Notes As soon as possible after the incident, write down all of the details that can be remembered: – Date – Time – Location – All details of what happened – What did officer look like? Height/weight/hairstyle – Officer in uniform or not? By foot, bike, or car? – Your injuries, how you feel

Evidence Tips - Witnesses • • • Get the name, address, phone number and email address of anyone who saw the incident. Ask any witness to write down what they saw right away so they don’t forget details and date and sign their notes. Make a copy of the witnesses’ notes. Ask the witness to keep one copy, and keep one for yourself.

Evidence Tips - Pictures, Videos • It is best to use a camera that puts a date on the picture/video. • It could be a picture or recording of what happened, or of the injury caused to the body or property, or of the place where the problem happened. • Take pictures of all of the injuries. It is best if the person taking the pictures can come to court/tribunal. • Ask any nearby stores or businesses if they have security camera. *Do this quickly, some are destroyed after 24 hours. If they have tapes, write a dated, singed letter to them immediately asking them to save the tapes and explain why. Keep a copy of the letter, and give the original to the store. • Take pictures of the area where the problem happened. Take pictures from a few different angles.

Evidence Tips - Medical Records • If injured, even if scrape or bruise, have a doctor examine the injuries. • Tell the doctor what happened (all injuries) and why a copy of his or her notes is needed. • Ask the doctor to photocopy the notes taken during an appointment so they can be used in the case. • Keep receipts if medical service was paid for. • If injuries don’t get better or get worse, keep going back to the doctor to document them.

Criminal Charges, eg: assault u Report a crime &/or lay a private info. with the court u The Criminal Code protects persons acting under authority from criminal prosecution, for eg: “Every one who is required or authorized by law to do anything in the administration or enforcement of the law(a) as a private person, (b) as a peace officer or public officer, (c) in aid of a peace officer or public officer, or(d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose”. But, there is no protection when excessive force is used: “Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess”. Criminal Code of Canada, R. S. C. 1985, c. C-46, ss. 25 -26.

Individual Charter Rights u Right not to be deprived of life, liberty, and security of the person except in accordance with the principles of fundamental justice; u Right to not be arbitrarily detained or imprisoned; u Right to not be unreasonably searched; u Right to speak with counsel upon detention; Canadian Charter of Rights and Freedoms, 1982, s. 7, 8, 9, 10(a)(b)

Right not to be arbitrarily detained u Detention is a suspension of the individual's liberty interest by a significant physical or psychological restraint. R. v. Grant, [2009] S. C. J. No. 32 at para. 44. u An officer must have: “reasonable grounds to suspect in all the circumstances, that the individual is connected to a particular crime and that such detention is necessary. ” R. v. Mann, [2004] S. C. J. No. 49 at para. 45. u Reasonable grounds is described as: “…. a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. ” R. v. Simpson, (1993) 12 O. R. (3 d) 182 (Q. L. ) at p. 15.

Right not to be unreasonably searched, eg: upon detention u “Where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat -down search must be conducted in a reasonable manner”. u “In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police…. . ” R v. Mann, supra, at para. 40, 45.

Charter Right Breach - Charged If you are charged and one or more of your Charter rights have been breached, the evidence of the offence may be excluded from the trial against you. Examples: Pot found in your pocket after an illegal search is excluded. CPIC records indicating you breached curfew are excluded after an illegal detention.

Charter Right Breach - No Charge Bring an action in court for damages when a Charter right is breached. “An award of damages may be an appropriate remedy for a breach of Charter rights, where the circumstances warrant it and the court considers it appropriate”. Heroux v. Toronto Police Services Board, [2006] O. J. No. 5190 (Ont. S. C. J. , Small Claims Court) at para. 4. Helpful to your claim: • proof of damage (calculated), evidence of personal suffering, indignity; • proof of police bad faith or reckless behaviour.

Civil Suit u u Unlawful arrest or imprisonment Assault/battery Conversion of property Negligence, duty of care, breach of standard, damages Defence- Legal authority within the Criminal Code (s. 25 - force, s. 494 – arrest) u Small claims ($25, 000 or under) or Superior Court jurisdiction u u 2 year time limit

Human Rights u Complaints for discrimination in service filed and heard through the Human Rights Tribunal of Ontario – www. hrto. ca u Grounds of discrimination – eg’s: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, disability, age (18 and over), marital status, and family status. u One year limitation period from alleged discriminatory act; if ongoing discrimination (that is, many acts that are “connected” so as to be considered one act) then one year from date of last act – can be more than a year if a compelling reason u Can get assistance at Human Rights Legal Support Centre – www. hrlsc. on. ca u The Human Rights Code allows the Tribunal to dismiss a case if it deems that the issue has been adequately resolved/addressed in another official forum and if an issue is currently being pursued in another process, the Tribunal proceedings may be deferred until the other process is complete

Lodge a Complaint - the PSA According to the Police Services Act, misconduct can be many things including activities like: • Resigning during an emergency; • Contravening regulations relating to equipment or standards of dress; • Engaging in unregulated political activity; and • Committing an offence described in the Code of Conduct. PSA, s. 80.

Making a Complaint u Six month time limit (with discretion) u Complaints submitted to the OIPRD about a police force’s policy or service or police officer’s conduct are reviewed. u If a policy/service complaint - referred to to chief of police u If officer conduct complaint - either referred to chief of police, another chief of police, or retained by the OIPRD u Complainant must be a) directly affected b) physically present c) have personal relationship and suffered harm or d) have knowledge and compelling evidence of misconduct. PSA, ss. 22 -26, 57 -98, and 113.

Investigating Complaints u The PSA gives the police commission, police services, police boards, the OIPRD, and the SIU power to investigate and unsatisfactory work or misconduct of police services or individual police officers. u 60 day notification period + 30 day appeal. Required written report, informal resolution option, option for review by OIPRD. u Remedies to complaints may include discipline against an officer, a local resolution option, or other remedies suggested by the OIPRD, Commission, Board, or Chief of Police. PSA, ss. 22 -26, 57 -98, and 113.

Sanctions for Misconduct • If there is clear and convincing evidence of officer misconduct or unsatisfactory work performance, a police service board or police commission may take certain actions against an individual officer including: • • • u Dismissal; Suspension; Demotion; Reprimand; Directions for counselling, treatment, or training, or other sanctions. The OIPRD has discretion to take over the investigation of complaints, direct a complaint to be dealt with in a specified way as it considers necessary in the circumstances. PSA ss. 25, 66, 69, 71 -3, 82 -90.

Advocacy Projects/Lobby for Change u Discussion with OIPRD, Police Service, or the Police Services Board u Youth and Police Advocacy Working Group u Affidavit Project u U-tube video, newspaper article u Support groups

Protecting Against Negative Police Interactions u u u Agency level – – – Document negative interactions with the police. Open a dialogue with the local division. Make a joint policy that respects the Constitution. Individual level – – – Document negative interactions with the police. Be polite. Ask if you are free to go? If not, ask, why? If you are not free to go, ask to speak to a lawyer. If being searched say, ‘I don’t want to be searched’. If injury or damage occurs, take photographs immediately – you never know when you may need them

Useful Resources • Local Legal Aid Clinic (416) 598 -0200 If you call Legal Aid Ontario, they will redirect you to your local legal aid clinic • Office of the Independent Police Review Director (OIPRD) 655 Bay Street, 10 th Floor, Toronto, Ontario, M 5 G 2 K 4 Tel: 416 -246 -7071, Toll-free: 1 -877 -411 -4773, TTY: 1 -877 -414 -4773 Fax: 416 -327 -8332, Toll-free fax: 1 -877 -415 -4773, Website: www. oiprd. on. ca • Scadding Court Community Centre – Community Education and Access to Police Complaints • Small Claims Court (CEAPC), Contact - Susanne Burkhardt 707 Dundas St. West, Toronto, Ontario M 5 T 2 W 6 Phone: 416 -392 -0335; Fax: 416 -392 -0340 47 Sheppard Ave. East, M 2 N 5 N 1, Tel: 416. 326. 3554 (Duty Counsel- Tuesdays and Thursdays, 9 -4: 30) • The Human Rights Tribunal of Ontario Tel: 416 -326 -1312 or 1 -866 -598 -0322, http: //www. hrto. ca/ • The Human Rights Legal Support Centre Tel: 416 -314 -6266 or 1 -866 -625 -5179, http: //www. hrlsc. on. ca/

Johanna Macdonald Street Youth Legal Services Lawyer Justice for Children and Youth 1203 -415 Yonge Street Toronto, ON M 5 B 2 E 7 Tel: 416. 920. 1633 cell: 416. 262. 0995 macdonaj@lao. on. ca

Case study #1 - TTC Mishap u You are 16 years old, and last night you were hanging out with friends. Taking the TTC home, your friend didn’t have enough money for the fare. Your passed back your pass, and the conductor took it from the friend. You went back, paid the fare for your friend, and asked the Conductor for your pass back. The conductor wouldn’t give it to you, and called the police. u The police came and asked your name. You gave it and then checked your name on the police database (CPIC). The said, ‘I see you have a record for theft under from a year ago!’. They put handcuffs on you and pushed your around into the corner. They started writing a ticket for the TTC offence. When you asked to get the handcuffs looser, they tightened them. It hurt. The police dumped all of the belongings from you bag onto the floor. They took the handcuffs off and made you pick up all of your belonings and put it into your bag. They also made you put garbage that was on the ground into the bag. The whole thing lasted about 25 minutes. u You had a cellphone on you and took pictures of the bruises that were left on your arms from the officers pushing you, and from the handcuffs. You don’t want to pay the ticket, and you are mad about how the cops treated you. What should you do? u

Case study #2 – At the Shelter u You are a staff at a youth shelter. Over the past six months, officers from the local division and from TAVIS have been coming to the shelter asking to investigate crimes with the youth who live there. Sometimes they have a warrant for arrest, sometimes they don’t. u When the police come in and ask questions, the youth usually answer all the questions asked and let their pockets be searched. Often, a few of the youth are arrested after being questioned and searched. u You want to help enforce the law and protect victims, but you are worried about the youth’s Charter rights and rights to privacy. u You’re not sure about what exactly the law says or if there are set procedures at your shelter for dealing with this stuff. u What should you do?

Case study #3 – Violated u You are a social worker and today one of your clients (living rough) tells you that he is stopped by the police on a regular basis. u He hasn’t been charged with anything, but the stops have escalated so to happen about one time per week in the last month. Last week, a female cop looking for drugs in a park pulled down his pants while on a park bench and touched his genitals when she did so. u The number of incidents and especially the most recent one is affecting your client’s emotional wellbeing. He feels violated, and nervous to walk down the street u What should the client do? u How can you help?

Case study #4 - Hurt u You are 22 years old and live in a rooming house. You were diagnosed as ‘bipolar’ a few years ago, but you don’t always take medication. u One evening six months ago you were sitting on the sidewalk the corner of Queen St. W. and Spadina, panhandling with friends. Two cops came up and started to give a ticket to you. You got mouthy (you don’t usually, but find you can act weird when not on medication for bipolar), saying you weren’t doing anything wrong. You insulted and swore at one of the cops, and your friends laughed. The one cop got angry back, called you a bunch of names and kicked at your blankets near where your dog was lying. You got angry. The cop could have hurt your dog. You got up to hit the cop. Before you could hit the cop, he grabbed both your arms and threw you to the ground. The cop then dragged you to the alley near Youthlink. You were yelling and trying to hit him. Once in the alley, the cop started hitting you, punching you in the stomach. You remember one hit on your head, and then blacked out. You woke in the hospital with bruises everywhere. u u Since the incident, you are having frequent headaches and are having trouble remembering things. What should you do?