Toxic Policing and How to End It

 

By Scott Reid

 

Much has been written and said about tragic encounters between civilians and police.  I have previously written on defunding the police and the improvements that could be seen by reducing police funding and redirecting those funds to other programs or agencies better suited to dealing with particular social ills.  You can read that previous article here: https://roylelaw.ca/defunding-the-police-by-scott-reid/.

However, defunding the police is not a panacea for toxic policing.  Rather, it is a necessary first step on the way to dealing with imbedded and systemic racism, delusions of grandeur, rampant self-entitlement, hero-complex, and visions of moral superiority within police culture.  After all, power corrupts, and absolute power corrupts absolutely.  As a society, we seem to have forgotten that fact in our rush to grant ever increasing powers to the police.

In this blog I will set out a number of concrete steps that could be taken to combat toxic policing.  These steps, in my view, could be highly effective at encouraging a sea change in attitude by the rank and file officers without whom no change will ever be effective.

 

1. Revise With-Pay Suspension

 

Virtually every officer who is charged criminally is suspended pending the outcome of the case.  All of them receive their paycheques while they wait for the case to wrap up.  Such a with-pay provision for suspensions undermines the public trust and allows these officers to continue receiving a salary for far longer than might be expected.  You might remember this story about a Toronto police officer, caught in a drug investigation, who maintained his salary while suspended with pay FOR TWELVE YEARS – https://toronto.citynews.ca/2019/05/06/exclusive-toronto-officer-suspension/.

As a defence lawyer, I’m acutely attuned to arguments of due process.  I argue all the time that my clients, if and when acquitted, can never get back their reputations, their jobs, etc.  I see no difference in principle for police officers charged with offences.  It would be unfair to the officer who is ultimately acquitted to have lost his or her pay for a year or more.

Suspending an officer without pay could impose significant hardships on not only the officer, but on his family, hardships which are well deserved if the officer is guilty, but unwarranted if the officer is not guilty, the determination of which may be months or years following arrest.

How then, do we balance the need to provide procedural fairness to officers charged with offences, while ensuring that the public is well-served and that officers do not abuse the with-pay provision of their suspensions?

Perhaps the best idea I’ve heard, and full credit for the idea should go to Mr. Reid Rusonik (@LawyerinToronto), is to have the officer’s salary placed into a trust account until the case concludes.  An administrator can allow certain bills to be paid (mortgage / rent, car payment, etc.), but the rest of the money is held until the case is done.  If the officer is acquitted, and allowed to return to duty, they receive the remainder of the money as a lump sum.  If the officer is convicted, and fired, then the money already received must be paid back to the police service and can be registered as lien on property etc.

This mechanism also provides a built-in incentive to the officers in not needlessly dragging out the procedure for twelve years.  The longer the matter drags on, the more the officer will have to pay back upon conviction.  Better to move swiftly to verdict whether innocent or guilty.

 

2. Mandatory Body and In-Car Cameras

 

The jury is still out on the effectiveness of body-cameras and in-car cameras in reducing incidents of police violence.  However, one thing is abundantly clear – they will never be effective if they are turned off.

People should immediately be concerned anytime devices which are designed to monitor police conduct are turned off.  Consider this – some defendants placed on bail have a condition to wear and ankle monitor.  If that person turned off the monitor, police and crowns and society generally would complain that obviously the person was trying to hide what they were doing and where they were going.  Why else would they have turned off the monitor whose only job is to provide exactly, and only, that information?

The same is true of in-car and body-cameras.  Their only purpose is to monitor police activity (and tangentially suspect / detainee behaviour).  Only the police officers have the ability to turn them off.  If officers are deciding to turn off those cameras, it suggests that they are about to embark upon a course of action that they know is prohibited, unconstitutional, illegal, unethical, improper, frowned upon, or some or all of the foregoing.

As such, any officer equipped with those sorts of devices should be prohibited from disabling, obscuring, covering, or otherwise impeding their functioning.  Any officer who does do any of those things, should be immediately fired for cause.  This can be effected via legislation which could make doing such things statutory grounds for dismissal for cause.

If police know they are going to be fired immediately for turning off the cameras designed to make sure they don’t commit police misconduct, they will be far less likely to turn them off, which in turn makes them far less likely to commit the misconduct in the first place, or to get away with it after the fact.

 

3. Mandatory Charter training

 

Police receive annual training.  Often the training is with respect to how to properly handle use of force options, sidearms, Tasers, pepper spray, etc.  Other times it is with respect to how to subdue suspects who won’t cooperate.

However, I’ve never heard one police officer in my entire career tell me that they receive training on the proper understanding of various Charter rights with which they are responsible for respecting each and every day they put on their uniform.

Never has an officer told me that they receive training on new Charter cases when they are released.  These are basic constitutional rights which are in play during each and every investigation and arrest an officer will ever conduct.  Section 9 – reasons for arrest and detention.  Section 8 – when can they search, and whom, and how, and where.  Section 10 – how can they properly take a statement from a suspect, and when must they stop trying to do so.  Section 7 – right to silence and other fundamental protections.

Most officers have never received any, much less significant training on these issues.  And yet an officer is far more likely to have to deal with, respect, and implement, these Charter rights then draw their sidearm in the course of an arrest.  Indeed, the proper implementation of Charter rights arises in each and every arrest, whereas there are officers who never draw their firearm once their entire career (apart from training).  Why is it then, that they receive annual training on firearm use and safety, but none on Charter compliance?  Surely the quality of policing could be improved if every officer were required, as a mandatory part of their annual training, to be educated about the nature, scope and breadth of the various rights.  I’m sure there are hundreds of lawyers and judges who would sign up to teach the officers how to be better at their jobs.  And yet there has been, to date, absolutely no appetite for such education.

The solution?  Mandate it by legislation.  If the police services boards, or police unions, won’t do it on their own, make them do it.  I find it interesting that as lawyers we are required to take twelve hours of continuing legal education each and every year.  And yet the police, who are the first point of contact with the criminal justice system, and the first entity charged with respecting Charter rights, are not required to take any.  We cannot allow the vested interests of police in not changing their practices to stymie necessary progress.

 

4. Mandatory De-Escalation Training

 

My father told me of a time he personally witnessed a police – suspect interaction many years ago.  There was one officer present, an old-school cop who had been around the block a time or two.  He was dealing with an agitated young man in his early 20s. The man had a knife in his hands.  The officer remained calm.  He removed his hat and held it in both hands at his waist.  He calmly spoke to the man, never raising his voice.  Slowly approaching him.  In the blink of an eye, the officer used his police hat to knock the knife out of the man’s hands, at which point he took him into custody without any further issues.

Contrast that with how police appear to operate now.  Now the police would surround the suspect, several officers would likely have their sidearms drawn and pointed at the suspect.  At least one, possibly several of them would be yelling / screaming demands to drop the knife, to get down on the ground, etc.  In that scenario, not only are the officers becoming more and more on edge, the suspect is becoming more and more agitated, more scared of what’s going to happen.  Adrenaline kicks and triggers a flight of fight response.  If the person is surrounded, flight is out of the question.  Is it really any wonder that situations like those often end with unnecessarily violent arrests and police assertions that the suspect “resisted arrest”?

Perhaps along with training on how to effect high-risk takedowns, police should receive training on how to de-escalate tensions with suspects so that fewer high-risk takedowns need to be made.  Those are skills that can then be used in situations other than arrests, such as if they are interacting with the mentally ill.  Indeed, in England and elsewhere in Great Britain (with the exception of Northern Ireland), the police use of firearms is highly regulated.  They are issued only to specially trained officers, and not as a matter of routine.[1]

 

5. Mandatory psychiatric / psychological counselling as prerequisite for promotion

 

I have long been a proponent of mandatory psychiatric and psychological counselling for police officers.  While the stigma surrounding mental health and such counselling generally appears to be decreasing, I suspect that amongst police officers the stigma remains high.  Speaking to a psychiatrist or psychologist is likely seen by many as a sign of weakness in a profession in which weakness is often considered a liability.

Whether officers can be forced to engage in counselling is a question I will not attempt to answer in this blog.  I’m sure that were any such condition made mandatory that some officers would challenge the provision on constitutional or other grounds.

However, it should be possible to make such counselling a requirement for promotion, advancement, and pay increases.  Such counselling should be seen as function of proper policing, and as such engaging in counselling should be required for further advancement and a refusal to speak to a counsellor should hold the officer back.

Many officers see things on the job that most people cannot fathom.  I have no doubt that many officers suffer from Post Traumatic Stress Disorder, and that the vast majority of those with PTSD are undiagnosed because they refuse to seek counselling.

A review of PTSD symptoms reveals a number of possible effects which should be of concern to police services.  In particular, the following impacts of PTSD on physical and emotional reactions should be of concern to anyone who turns their mind to their impact on officers in emotionally charged situations and who is carrying a firearm:

• Being easily startled or frightened;
• Always being on guard for danger;
• Self-destructive behaviour (excessive drinking for instance);
• Trouble concentrating; and
• Irritability, angry outbursts, or aggressive behaviour.[2]

It is not difficult to imagine an officer who suffers from PTSD engaging with a suspect, and because he or she is easily frightened, and overly aggressive, resorting to a violent arrest when none is warranted.

Furthermore, mandatory counselling could help alert supervisory officers about potential problem officers for issues such as racism or other biases, who may need to be weeded out of policing.  It could also help officers themselves identify problems which they were not even aware they had until engaging in counselling.

If officers were required to engage in counselling or forego advancement / salary increases / pay duty opportunities, then many officers who might want to take advantage of counselling to work through PTSD or other issues but are reluctant due to the stigma associated with such counselling, would have a ready-made excuse to provide to their colleagues.  They wish to get promoted, so they are going to take the counselling.  Those officers who remain resistant to such counselling would not be fired, but by not receiving any advancement or pay increases, they might find police work to not be rewarding enough to continue in that employment and resign.

 

6. End the war on drugs

 

There is a raft of literature on the impacts of the war on drugs in North America, particularly on racialized communities and persons living in poverty and / or with addiction issues.  The war on drugs has led directly and inexorably to the militarization of police services around the continent, with the related impact of ever-increasing police budgets in order to purchase military-grade equipment.  It has also lead to increasing racial profiling.  The War on Drugs is, in reality, a War on Persons of Colour, and a War on the Poor.

There is a legitimate argument to made that decriminalizing all drugs and treating addiction as a health issue instead of a criminal issue, would lead to significant reduction in crime, with little if any increase in drug use / addiction.  Indeed, that has been the experience in Portugal, which has seen reductions in crime with minimal increase in drug use following the decriminalization of all drugs in 2001.[3]

Suspicion of drug possession is used overwhelmingly as an excuse to stop young black men and search for contraband.  Such stops fuel animosity towards the police by targeted communities.  It is also a waste of resources.  Despite decades of funding the war on drugs, we see no reduction in use, addiction, production, or sales.  Clearly the war on drugs has been an abject failure from a criminological standpoint.  It has been a rousing success, however, from the standpoint of police funding (and in the case of the United States, which has a significant private-prison industry, the building and funding of more prisons).

Ending the war on drugs would be a huge step forward to focussing police involvement where it belongs, true criminal behaviour, instead of an area in which it has little expertise, and less success, which is addiction.

 

7. Regular Uniforms and No Military Grade Equipment

 

Over the past several decades, the police have increasingly become militarized.  They possess rifles which resemble military assault weapons, their uniforms, complete with helmets and use-of-force options on their belts make them more likely to resemble soldiers than peace officers.  They request, and are provided armoured vehicles.

Let’s mandate a return to policing as a civilian endeavour, not a military one.  Looks can be important.  Putting armed soldiers on our streets resembles an act of intimidation, even if it is not intended to be.  Having soldiers on our streets creates the impression of a community under siege.  Indeed, were actual soldiers patrolling our streets, that is exactly what people inside, and outside, those communities would be saying.  The fact that they are police who are equipped and outfitted like soldiers does nothing to change that perception.

 

8. Overturn R. v. Ghorvei

 

In 1999 the Ontario Court of Appeal released the decision of R. v. Ghorvei.[4]  This decision held that a police officer could not be cross-examined on prior judicial findings of misconduct.  In other words, even when an officer had been found, by a judge, to have manufactured evidence, perjured himself, or otherwise committed misconduct in a prior case, with the result that the officer’s evidence was rejected, that officer cannot be cross-examined on that conduct in a subsequent case.  (Unless the officer testifying as a witness had been, previously, him or herself the defendant, and had been convicted.  In that case the normal rules of cross-examining on criminal antecedents applies.)

This case is, unfortunately, an example of a stunningly myopic viewpoint of the judges in the case.  Their ruling effectively hinges on the view that the prior findings on the officer’s credibility are merely “opinions” of those judges, and the police witness should not be cross-examined on the “opinions” of others.

The effect of that ruling cannot be underestimated.  Effectively police are now insulated from prior findings of misconduct, unless that misconducted has resulted in its own criminal or police service disciplinary prosecution.  There have been numerous, well publicized, decisions in which trial judges have found that the police officer has lied, misstated, or spun his evidence to fit the police / prosecution narrative.  I’m not aware of any criminal charges being laid or disciplinary actions being commenced against any of those officers.

What this rule allows, is for an officer to repeatedly lie in court, without subsequent judges, or juries, knowing about it.  Would a trier-of-fact’s assessment of a police officer’s credibility be different if he or she was aware that a previous judge made a positive finding of fact that the officer had lied in court?  One would hope it might at least cause that judge to examine the officer’s evidence a little more closely to see if the testimony holds water.

Unless and until our Court of Appeal, or the Supreme Court of Canada revisits and overturns this most unfortunate ruling, the only route of redressing it is legislatively.  Given that Parliament has sole jurisdiction over criminal law, it would fall to Parliament to legislatively overrule this case, which would then allow defence lawyers to ensure that triers of fact had all the necessary information needed to properly assess a police officer’s credibility.

 

Conclusion

 

In summary, there are a host of legislative options which could be implemented to make the profession of policing less toxic.  It is clear that after years of resistance to reforms, the police are simply unwilling to make the necessary changes of their own accord.  Legislating change appears to be the only viable option.

It will require both the Provincial and Federal governments to be bold and take assertive, ground-breaking action to adequately control both police conduct, and unnecessary police expenditures.  However, if these governments take the issue seriously, and implement some or all of these suggestions, then I predict that the effects will be positive, wide-ranging, and not take long to occur.

Years of stagnation and foot-dragging has shown that doing nothing leads to where we are now.  Institutional inertia results in the status quo. A new path is required.  One that is premised on evidence, a different way of thinking about our challenges, and a different approach to addressing them.

 

[1] https://en.wikipedia.org/wiki/Police_use_of_firearms_in_the_United_Kingdom#cite_note-10.  Note as well that chemical incapacitants (ie. pepper spray) are subject to the same rules of use as are firearms.

[2] See the Mayo Clinic review of PTSD at https://www.mayoclinic.org/diseases-conditions/post-traumatic-stress-disorder/symptoms-causes/syc-20355967.

[3] https://academic.oup.com/bjc/article-abstract/50/6/999/404023.

[4] https://www.canlii.org/en/on/onca/doc/1999/1999canlii19941/1999canlii19941.html.