SUBMISSION OF ARCH DISABILITY LAW CENTRE To the Standing Committee on Justice Policy in response to Bill 103, An Act to establish an Independent Police Review Director and create a new public complaint review process by amending the Police Services Act January 30, 2007 Laurie Letheren Staff Lawyer ARCH Disability Law Centre 425 Bloor Street East, Suite 110 Toronto, Ontario M4W 3R5 Tel: 416-482-8255, 1-866-482-2724 TTY: 416-482-1254, 1-866-482-2728 Fax: 416-482-2981, 1-866-881-2723 www.archdisabilitylaw.ca Written Submission to the Standing Committee on Justice Policy on Bill 103, An Act to establish an Independent Police Review Director and create a new public complaint review process by amending the Police Services Act of ARCH Disability Law Centre January 30, 2007 About ARCH Disability Law Centre ARCH Disability Law Centre is a charitable, not-for-profit specialty legal clinic that is dedicated to defending and advancing the equality rights of persons with disabilities, regardless of the nature of the disability. We have a Provincial mandate. ARCH represents national and provincial disability organizations and individuals in test case litigation at all levels of tribunals and courts, including the Supreme Court of Canada. We provide education to the public on disability rights and to the legal profession about disability law. We offer a telephone summary legal advice and referral service. Our membership consists of over sixty disability organizations and ARCH is governed by a volunteer board of directors, a majority of whom are persons with disabilities. About this Submission ARCH is encouraged by the government's initiative to reform the current police complaints process. Through our summary advice and referral service and through our contact with members of disability organizations, we have heard that many persons with disabilities who have filed or attempted to file complaints through the current system have been dissatisfied with the outcome. We have heard that many choose not to complain or abandon the complaint before it is resolved. Many have expressed distrust of a system after learning that the complaint is filed with the police and is investigated by the police. In addition, persons with disabilities are often barred from making complaints because the process for filing complaints is not accessible or because the police service does not take their complaint seriously. After a comprehensive review of the police complaints system, Justice Patrick LeSage released his report in April 2005. The number one recommendation stated in the report was that "An independent civilian body should be created to administer the public complaints system in Ontario (Endnote 1)." In his press release of 19 April 2006, Attorney General Bryant stated that if Bill 103 were passed it "would provide the public with a significant new option for bringing forward their concerns" and when Bill 103 was introduced in the legislature in October 2006 the Attorney General stated that the bill "would entrench an independent and transparent police review system." It is ARCH's opinion that despite statements made by Justice LeSage and the Attorney General, Bill 103 does not prescribe a significant new option that is independent and transparent. In the first part of our submission we will recommend amendments to the bill that, if adopted, would allow for the creation of police complaint system that is fully administered and controlled by an independent civilian body. It is ARCH's opinion that until police are no longer involved in review police complaints, the public mistrust and dissatisfaction with the system will remain unchanged. The second and major part of our submission will focus on the need to amend Bill 103 to ensure that the entire complaint process from filing a complaint through to investigation and resolution is accessible and fully accommodates the needs of persons with disabilities. PART I - Truly Independent Civilian Body Through our contact with persons with disabilities and with members of organizations representing persons with disabilities we have learned that many persons who may have experienced police misconduct do not file complaints because of fear of reprisal, because they feel that their complaint will not be taken seriously or properly investigated because the police are protecting themselves. In the report prepared by Justice Patrick Lesage, it is stated that many who had met with him indicated that the current system was not effective and that the ineffectiveness of the system itself lead to a mistrust of the police. In his report, Justice Lesage wrote (Endnote 2): A fair, effective and transparent complaints system could be a step toward improving confidence and trust in the police. They suggest that this can only come from implementing a fully independent civilian complaints system starting, from the reception of complaints to the final adjudication and appeal of disciplinary decisions. This view was expressed most forcefully by racialized groups that have historically suffered from discrimination. Similar opinions about the current police complaints system were expressed by the Ontario Human Rights Commission (Endnote 3) and the Psychiatric Patient Advocate Office (Endnote 4) in their submissions to Justice LeSage. In ARCH's opinion, if the system for processing complaints proposed under Bill 103 were established there likely will be little change in the public's trust and satisfaction with the system. Under Bill 103, if a complaint is filed about the conduct of a police officer, the Independent Police Review Director has the discretion to refer the complaint to the officer's chief, to the chief of another police force or to retain it for investigation by the Director's office. ARCH is concerned that resources, funding and outside pressure will force the Director to refer many cases to police forces for investigation and resolution. The result will be that the system will be relatively unchanged as police will continue to investigate police in these cases. The public confidence in the system will remain unchanged as well. In addition, by providing the Director with discretion on whether to refer the complaint to a police service for investigation or to conduct the investigation him or herself, there will be a lack of consistency in how complaints are investigated and resolved across the province. The amount of time or resources provided for complaints should not be dependent on the time and resources of the police service or the importance a particular police service places on complaints. For a person with a disability who may be making a complaint about a police force's failure to accommodate her disability, a complaint made to a civilian body should mean that the complaint is investigated and resolved by persons who have been trained in disability issues. All complainants should have equal opportunity to have their complaints properly and fairly resolved. In addition, having all complaints reviewed by the same civilian body will insure that there is opportunity to track common complaints so as to monitor systemic issues. The way to restore public confidence and trust in the complaint system and in turn, improve public relations with police is to establish a truly independent civilian body that will receive, investigate and determine all police complaints. ARCH also recommends that in order to insure consistency in dealing with complaints and to allow for proper monitoring of systemic issues, Bill 103 must be amended to remove the distinction between the process for handling complaints about conduct and complaints about policy and services. All complaints should be processed in the same way. The conduct of officers is often a reflection of a policy within the police services. For example, we have heard of persons with mental health disabilities who attempted to make complaints about the use of restraints by officers. When the person attempted to make a complaint she was advised that it was the policy of the police service to restrain all persons who were in mental health crisis and the police station refused to take the person's complaint. ARCH recommends that all complaints about officer conduct, chief conduct and policies and services shall be reviewed and investigated by a completely independent civilian review body. ARCH recommends that the independent civilian review body must be fully separated from any police service and must not employ any current or former police officers. ARCH recommends that Part V of Bill 103 be amended so that each complaint regardless of whether it is a complaint about an officer, a chief of police or commissioner and regardless of whether that person is a member of a municipal or provincial police service shall be subject to the same review, investigation and resolution process. ARCH endorses the position taken by the Psychiatric Patient Advocate Office, CLASP and other groups submit that a truly independent civilian body should be established to handle all police complaints in order to restore credibility to the police complaints system and to have a system that is fair, effective and transparent. PART II - FULLY ACCESSIBLE SYSTEM Accessible complaint process In his report, Justice Lesage makes reference to the difficulties that complainants have in navigating the current system. At page 38 of his report he states: While it was felt the system fails complainants in a large number of areas, it was often noted that the system is inherently difficult to navigate. The police have made few attempts to make the complaints system user-friendly, and I was told that only the most educated and determined complainant would be able to successfully find their way through the process. Even those complainants who possess these characteristics told me they were surprised by the obstacles they encountered. Many said that their experiences with the system have left them frustrated and angry (Endnote 5). In creating and designing the new system for handling police complaints, the principles of universal design (Endnote 6) must be applied to make all aspects of the new system starting from educating the public about the system to final resolution of complaints are usable by a broad range of people. Steps must be taken to insure that the system is fully accessible to persons with disabilities including persons with vision or hearing disabilities, communication disabilities, mobility disabilities and intellectual and developmental disabilities. First, an accessible process requires that all barriers, including barriers to accessing its physical spaces, communications and information, policies and practices be identified and removed to ensure full accessibility. There are currently many barriers, including attitudinal barriers, which persist throughout the complaints process. For example, the information provided by the Ontario Civilian Commission on Police Services does not appear to be available in formats that would be accessible to persons with visual impairments and the contact information does not provide a number for those persons who are deaf, deafened or hard of hearing and use a Telecommunication Device (TDD) or a Text Telephone (TTY). Because complaints must currently be in writing, those persons who may not be able to write out their complaint because they are illiterate have disabilities that affect their mobility or are persons with cognitive, communicative, intellectual and developmental disabilities may be barred from filing a complaint. The body receiving complaints must accommodate these persons by either providing a device or a person who can assist in drafting their complaints. The process must be flexible and must accommodate the particular needs of all persons with disabilities. The onus should be on the civilian review body to ensure that all accommodations are in place once a person's disability has been identified. One possible way of achieving this may be to have a system where accommodation needs are identified at the point of filing a complaint and a case file manager would then ensure that the claimant's needs are accommodated throughout the entire complaint process. Key to this is to ask the individual complainant how she or he can be accommodated and understanding that there is a great variety of potential accommodations. Accommodating the needs of the individual is consistent with the spirit of the Accessibility for Ontarians with Disabilities Act, 2004 and Canadian human rights jurisprudence. ARCH recommends that a provision addressing accessibility be legislated and that the following section be added after section 56 of the bill: The principle of accessibility will have primacy over concerns of efficiency and expeditiousness of the complaint process. In addition, ARCH recommends that principles of accessibility be included in section 56(1), which sets out the powers of the Independent Police Review Director in establishing procedural rules and guidelines for handling complaints. The following should be added to section 56: In making rules governing the practice and procedure before it, the Independent Police Review Director must prescribe practices and procedures that insure full accessibility to persons with disabilities throughout its processes. ARCH recommends that section 56(2) be amended as follows: (2) Procedural rules established by the Independent Police Review Director under clause (1) (a) shall be in writing and shall be made available to the public in a readily accessible manner and in particular, in a format that is accessible to all persons with disabilities. Public Education In his report, Justice Lesage states: Outreach and public education are critical to fostering understanding and public confidence and the lack of efforts in this area has no doubt been partly responsible for the current problems... It is essential to the success of any new public complaints system that an extensive public education program be put in place so the citizens of Ontario are informed about how the system operates and can be accessed (Endnote 7). ARCH agrees the public education on the new system will be critical to increasing the public's trust and use of the new complaints system. The information must be available in accessible formats and must be delivered in manners that ensure that all persons of disabilities can obtain and understand the content. ARCH recommends that section 58(4) be amended by adding the following: The Independent Police Review Director shall provide information about the public complaints system in formats that are accessible to all persons with disabilities and in manners that accommodate the needs of persons with disabilities. Accessible Hearings and Appeals In the same way that the process for filing complaints must be fully accessible and must accommodate the needs of persons with disabilities, the body responsible for designing and administering the hearings and appeals processes must make sure that all barriers, including barriers to accessing its physical spaces, communications and information, policies and practices be identified and removed to ensure full accessibility. Accessible hearing procedures would include such things as: > providing all documentary evidence in accessible formats; > the Independent Police Review Director would cover the costs of converting the documents to accessible formats; > providing interpreters and interveners; and > being flexible on timing of steps in the process so that those who may require more time because of their disability are accommodated (Endnote 8). Complaints filed by Third Parties Section 58(1) states that a member of the public may make a complaint to the Independent Police Review Director. Section 58(3) states that a complainant may act through an agent. Neither "member of public" not "agent" are defined in the bill and it is unclear whether a third party could file a complaint. In addition to allowing a person to appoint someone to act on their behalf, organizations who may have encountered police or who may have a concern with a policy or service should be able to file their own complaints. As well, organizations or persons who have an interest in the welfare of particular group of persons should be permitted to file an application on behalf of such persons, with their consent. Some individuals are unable to file a complaint due to a physical, intellectual or psychiatric disability. For others, filing a complaint is unlikely and simply not an option for reasons such as wanting to preserve anonymity, lack of resources, fear of reprisals or the emotional cost involved. However, a community organization, with the individual's consent, could pursue an application without such concerns. A good example of a complaints system that allows anonymous complaints is the system for filing complaints at the Pay Equity Tribunal of Ontario (Endnote 9). The Pay Equity Act allows an employee or group of employees to remain anonymous in a proceeding by allowing them to appoint an agent who replaces the employee as the party to the proceeding. ARCH recommends that subsection 58(1) be amended as follows: Any member of the public or organization may make a complaint under this Part to the Independent Police Review Director about, (a) the policies of or services provided by a police force; or (b) the conduct of a police officer. ARCH recommends that the following be added as subsection 58(1.1): A person or organization may make a complaint under subsection (1) on behalf of another person if the other person, (a) Would have been entitled to make a complaint under subsection (1); and (b) consents to the application. ARCH recommends that all sections of the bill that refer to "member of the public" need to be amended accordingly to include organizations making complaints on their own or on behalf of a person. ARCH recommends that the following, which adopts the wording under subsection 32(4) of the Pay Equity Act, be added as a subsection to section 58: Where a complainant or group of complainants advises in writing that they wish to remain anonymous, the agent appointed shall be the party to the proceeding and not the complainant or group of complainants. Time Limits ARCH recommends that the current limitation period set out in subsection 60(2) be extended from six months to two years, in accordance with the general standard for civil actions. Many persons with disabilities may be unable to meet the six month deadline because of their disability. As the Psychiatric Patient Advocate Office indicated in their August 2004 submission to Justice Lesage: Many consumers of mental health services are detained in hospitals for extended periods of time and have difficulty accessing information. Other consumers may spend an extended period of time in hospital in an effort to manage their illness. Their legal status in hospital or efforts to manage their illness should not be held against them where a prima facie case of police misconduct exists. ARCH recommends that the following, which is adopted from section 7 of the Limitations Act, 2002, S.O. 2002, c. 24, be included as subsection 60(2.1) to provide that the limitation period does not run during any time in which a person is incapable: The limitation period established by subsection 2 does not run during any time in which the complainant, (a) is incapable of filing a complaint because of his or her physical, mental or psychological condition; and (b) is not represented by a litigation guardian in relation to the claim. Advisory Committees ARCH endorses the recommendation made by the Psychiatric Patient Advocate Office in its August 2004 submission to Justice Lesage that an advisory committee be formed to assist with the design, implementation, monitoring and evaluation of the new police complaints system. Persons with disabilities should be on the advisory committees in order to assist the civilian body in addressing the unique needs of persons with disabilities and to assist in removing any barriers to full access to and participation in the police complaints process. CONCLUSION In conclusion we ask that you will seriously consider our recommendations and those of other presenters. This is an opportunity for change that should not be lost. Thank you for allowing ARCH to present to this Committee. Endnotes: 1 The Honourable Patrick J. LeSage, Q.C. 'Report on the Police Complaints System in Ontario," 22 April, 2005 at page 66. 2 Ibid at page 35-36. 3 Submission of the Ontario Human Rights Commission to the Ontario Police Complaints Review, 14 October 2004. 4 Submission of the Psychiatric Patient Advocate Office Relating to the Review of the System for complaints by the Public Regarding the Police, 16 August 2004 available online at http://www.ppao.gov.on.ca/pos-les.html. 5 Supra note 1 at 38. 6 Universal design refers to a philosophy that all environments (built structures, technological systems, policies etc.) be designed to be usable by a broad range of people. Universal design is rooted in the principles of equality and citizenship and seeks to foster social participation for diverse populations by maximizing accessibility. Full inclusion upfront, without after-the-fact adaptation or retrofitting, is the goal of universal design. Universal design recognizes that all design involves a deliberate choice and the principles of access, inclusion and equality, must always inform that choice. Universal design not only ensures that persons with varying disabilities will have access, but benefits a broad range of people, leading to a more inclusive society. Universal design is not only relevant to the built environment but has a real and practical role to play in all aspects of social life. These principles seek to proactively redress barriers by advocating a philosophy of barrier prevention in all social planning. For more on this, see information contained on the Ontario Ministry of Community and Social Services website at http://www.mcss.gov.on.ca/mcss/english/pillars/accessibilityOntario/questions/ao do/act2005.htm. 7 Supra note 1 at page 61. 8 The need for flexible time lines could be because of such things as societal barriers like set paratransit schedules, or could be because some people may function well in late morning or early afternoon because of their disability or medication or because some people may require longer time to prepare documents. 9 See: http://www.labour.gov.on.ca/pec/peht/info/peht_info03.html