March 13 2018 – Bill 175 Receives Royal Assent

Dear Friends,

Last week, Bill 175, The Safer Ontario Act was voted on and passed in the Ontario legislature and received Royal Assent. Not only did the Bill pass, we got what we wanted: robust legislation with measures that protect our communities, the most vulnerable and most importantly strong oversight in policing for Ontario.

In December of last year, we began a lobbying effort to encourage both the NDP and the Liberals to take our recommendations and maintain the spirit and intent of the proposed legislation. We had serious concerns that the Bill would be watered down (Section II) so we stepped up our efforts by sending approximately 19,742 emails to a 103 members of the legislative assembly. Our approach was so effective that the Police Association of Ontario tried to copy our email platform during the last week of the assembly debates on the bill. They say imitation is the best compliment! 

With your help, we succeeded. Here are three of the big issues we pressed for in the bill:

Before Bill 175

After Bill 175

Non Compliance with the SIU

· In December 2013, More than 100 letters sent by former Special Investigations Unit director Ian Scott to Toronto Police Chief Bill Blair allege that officers repeatedly violated their legal duty to co-operate with the provincial watchdog. Source.

· On November 2015, Const. Joseph Dropuljic of the Toronto Police assaulted and seriously injured a young Black man.  The SIU was not notified of the incident. He was getting into a taxi to go visit a friend when Toronto police officers dragged him out of the cab, kneed him in the back, beat him, illegally searched and groped him. Source.

· On December 2016, Const. Michael Theriault of the Toronto Police and his brother Christian Theriault viciously attacked 19-year-old Dafonte Miller while off duty in Whitby. The SIU found out about the incident only after being contacted in April by Miller’s lawyer, Julian Falconer. No one was held accountable for this incident. Source.

Consequences of Non Compliance

Police Officers are required to comply with directions or requests of the SIU Director or investigators. A failure to do so constitutes an offence, the penalty on conviction being a fine of not more than$25,000 for a first offence or $50,000 for a subsequent offence, a term of imprisonment of not more than one year, or both.

 Standard of Proof

· On November 2012, the balance of probabilities standard was used to find Ottawa police Const. Kevin Jacobs, an officer of more than 20 years, guilty of using excessive force when he arrested Mark Krupa in 2009 for speeding on the Queensway. Krupa suffered facial lacerations and was kneed in the head by Jacobs. Source.

·Jacobs was docked 12 days’ pay as a penalty following his 2012 disciplinary hearing. He was also ordered to pay $9,300 in legal costs after losing his bid to overturn a disciplinary hearing finding that he used excessive force during a 2009 arrest. Source.

· Jacobs appealed the decision, arguing the wrong standard of proof was used to prosecute him. After two unsuccessful appeals — one with the Ontario Civilian Police Commission and the other with Divisional Court — Ontario’s highest court eventually agreed with Jacobs.  In Jacobs’ successful appeal, a panel of three judges said they were bound by a 2013 Supreme Court ruling and said the court must rely on the language used in the Police Services Act, the legislation that governs police officers in Ontario. Source.

·  The 1990 Police Act says that standard of proof must be clear and convincing evidence. Clear and convincing evidence as a standard of proof is “higher” than the “mere balance of probabilities”.  This is unhelpful because while the concept of “51 percent probability,” or “more likely than not” can be understood by decision makers, the concept of 60 percent or 70 percent probability cannot. Source.

A Balance of Probabilities

If the Ontario Policing Discipline Tribunal determines, on a balance of probabilities, that the conduct of a police officer or special constable constitutes professional misconduct, the Tribunal may make specified orders. This means that the plaintiff must prove that his facts tip the scale in his favor even if it is only a 51% probability that he is correct. This is a lower standard of proof than what the Police Associations want.

Suspension with Pay

·On April 2014, Const. Scott Fenton, Sgt. Mark Barclay and Sgt. Al Ferris of the Ottawa Police — made in $389,441.17 in total salaries in 2013 and will continue to collect their earnings in 2014 despite being charged with criminal offences. Source

· On March 2017, Const. Daniel Montsion, has been suspend with pay from the Ottawa Police. The SIU, charged an Ottawa police constable with manslaughter, aggravated assault and assault with a weapon in the July 2016 violent death of Abdirahman Abdi. Source.

· On August 2017, Const. Michael Theriault has been suspended with pay from the Toronto police. Const. Michael Theriault and his younger brother, Christian, have been charged by the SIU with aggravated assault, assault with a weapon and public mischief for the early morning beating on Dec. 28, 2016 of Dafonte Miller who suffered a broken nose, jaw, wrist and permanent vision loss in one of his eyes. Source.

 

Suspension without Pay

In the past, Police Chiefs in Ontario argued they could not suspend police officers without pay because their hands are tied with the 1990 Police Act. The new bill states that a chief of police may suspend a police officer who is a member of the chief’s police service, other than a deputy chief of police, without pay if the police officer is in custody or is subject to conditions of judicial interim release, or conditions imposed under section 499 of the Criminal Code (Canada), that prevent the officer from performing the usual duties of a police officer.

As you can see, the previous legislation allowed “bad apples” to hide behind polices and legislation. This said, we do agree with criticism that some points in the bill go too far, such as the opening up of police services to some privatization in our communities. This is an area we are concerned about and it should be more closely examined during the drafting of regulations by the province. To know more, see our technical submission to the Standing Committee on Justice Policy concerning Bill 175. 

Today, we take a step back and see how far we’ve come. Rewind to July 24, 2016, to the death of Abdirahman Abdi. Before forming as group, we were concerned members of the Ottawa Somali community. When news broke of Abdirahman’s death we met with the leaders responsible for community safety in our city and our Province: The Mayor, the Chief of Police and the Attorney General of Ontario. We had many questions and we went looking for answers.

We were not alone in our search for answers. You! Local, national and international organizations, independent lawyers and community advocates all supported our efforts.

It’s been a long road. Nearly two years of asking questions, searching for answers, consulting officials, community and experts; combing through best practices in other jurisdictions, speaking out in the media, drafting position papers, submitting written recommendations and appearing before committees and boards.

Twenty months later, but we did it, and you helped! You helped by showing up to our events, supporting our online campaigns, lending your resources and oftentimes, your shoulders. For this we thank you!

Please continue to support our work. Look out for news and events on our website.

With appreciation,

The Justice for Abdirahman Coalition

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The Justice for Abdirahman (JFA) Coalition (“the Coalition”) is a group formed within days of Mr. Abdi’s death. The Coalition is based in Ottawa and supported by local and national advocacy groups. The Coalition’s objectives are to obtain greater transparency, challenge racial inequity, increase support for mental health needs and bring positive change to our law enforcement institutions. The Coalition asserts that fairness, transparency and accountability in our law enforcement institutions are critical to ensuring all of our safety and security.

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