Doug Ford has promised to ‘fix’ Ontario’s new policing laws. What could that look like?

Thestar.com
August 19, 2018
Wendy Gillis

It was one of the first acts of Premier Doug Ford’s new government. Just hours after being sworn in, the Progressive Conservatives postponed the implementation of new police oversight legislation, one day before it was scheduled to come into effect.

Done quietly via an order in council, the move has been characterized by the Ford government as a temporary halt to allow for time to review the new law, which granted greater powers to the provincial police watchdog, the Special Investigations Unit (SIU).

Premier Doug Ford has said he’ll review Bill 175, the omnibus policing legislation passed by the Liberal government this past spring

“We have pressed pause on this,” Attorney General Caroline Mulroney said last month, when questioned at Queen’s Park. “We want to work with our front-line police officers to make sure that we have the right answer on this issue.”

During heated exchanges that ensued during question period, NDP Opposition Leader Andrea Horwath accused the Ford government of “secretly slamming the brakes” on the legislation, comments that later prompted Ford to call the NDP “police haters.”

The SIU legislation was just one part of an overhaul of police legislation passed this spring by the previous Liberal government. When the legislation package, known as Bill 175 or the Safer Ontario Act, was unveiled late last year it was hailed as historic and overdue.

But with promises from the Ford government to “fix” the bill, the halt on the SIU Act may be only the first alteration to laws with still-drying ink. Michael Tibollo, minister of community safety and correctional services, said last month that the province is “committed to fixing Bill 175 and treating our front-line officers with respect.”

Though no details have been released, some police experts are expressing concerns about the Ford government halting or altering hard-fought changes -- tinkering with legislation meant to work as a whole.

“I think that many people including myself feel that, although there are certain parts of it that aren’t perfect, it put Ontario really at the forefront of balanced policing legislation,” said Kent Roach, a professor of law at the University of Toronto whose expertise includes policing.

Roach notes that the ongoing debate about the future of the new bill has great importance within Ontario, but also nationwide. The history of police regulation in Canada, Roach says, often sees Ontario as the “innovator.”

“If Bill 175 is delayed or repealed or knocked back, that also sends a signal beyond Ontario which I think would be unfortunate,” he said.

What is Bill 175?

Also known as the Safer Ontario Act, the omnibus legislation passed in March and created new laws and regulations around policing and its governance and oversight. The changes are varied, and include the first update to the Police Services Act in more than 25 years -- modifications that include increasing police chiefs’ ability to suspend officers without pay. The bill also enhanced the province’s three oversight bodies, including the SIU, and established a plan for independent investigations of public complaints about police.

The bill also increased training for police boards; included measures to support the sustainability of First Nations policing; mandated anti-racism training for police watchdog personnel, and more. It also created the Missing Person’s Act and the Forensic Laboratories Act, made changes to the Coroner’s Act -- including making coroner’s inquests mandatory when a police officer’s use of force causes death, and more.

What’s the status of Bill 175 -- is it all on hold?

The Ford government has stalled one part of the legislation: the implementation of the new act for the SIU. Ford and others have said the “pause” will allow for further consultation on its changes, which had included new powers to impose penalties on police officers who fail to co-operate with the watchdog’s investigations.

No details have been released about changes to other parts of the bill, many of which are expected to come into effect by next year. But Ford has been clear that other aspects of the bill pertaining to policing will be under the microscope.

In a letter to some of Ontario’s largest police unions, including the Toronto Police Association, Ford called the postponement of the SIU law “just the first step toward delivering on our promise to fix policing legislation.”

“We believe that the previous government’s Bill 175 hurts policing efforts in the province and undermines confidence in the police,” said the letter, dated June 29, the date of Ford was sworn in.

What are the points of contention -- changes that might “hurt” policing?

Much of the pushback against Bill 175 has centred on defining the core duties of police officers in law. The move would set parameters around the responsibilities of sworn -- and highly paid -- police officers, in turn identifying which tasks could be performed by civilians. Those duties might include securing and guarding a crime scene, performing administrative tasks, traffic control and more.

The definition would help municipalities cut the ever-growing cost of policing by enabling communities to civilianize certain tasks performed by police -- contracting out scene securing, for example, to a private security company. But it received strong pushback from police associations worried that it opened the door to privatizing policing.

“Respectfully, we can’t trust security guards to perform critical duties that help protect the public and maintain law and order. Ontario’s safety should not be for sale,” Bruce Chapman, president of the Police Association of Ontario, told the province’s Justice Committee earlier this year.

The change was also criticized by a police board member from London, who raised concerns about the “Walmart-ization” of policing.

Fred Kaustinen, executive director of the Ontario Association of Police Services Boards, said members have expressed strong support for an “alternative delivery model.” While he stresses that the government has the prerogative to amend legislation as it sees fit, he says altering this part of the bill would be delaying what’s unavoidable.

“If that happens, all the government’s doing is deferring the inevitable. Because at some stage here, public safety will become more and more and more market driven,” Kaustinen said, saying labour costs are high in the public model compared to the private sector.

Other controversial aspects of the bill include changes to the police disciplinary tribunals, which involve independent adjudication. While stressing they support an impartial process, police associations have claimed the change “strips away almost every right a police officer has to due process and procedural fairness,” Ontario Provincial Police Association president Rob Jamieson said. They have also said the independent adjudication of misconduct allegations should not only occur for public complaints, but for all cases -- including when, for example, a colleague or supervisor complains about an officer.

The Ford government has promised further consultation on policing and police oversight. Wasn’t that just done?

Many of Bill 175’s changes came as a direct result of the police oversight review conducted by Ontario Court of Appeal Justice Michael Tulloch, completed last year. During the year-long review, 17 public consultations were held across Ontario and Tulloch had 130 private meetings, which included consultations with police services, chiefs, associations and members of police boards. It also included meetings with families of people killed by police, and members of Black, indigenous and racialized communities.

The consultation efforts were “heroic,” said Roach, adding that there was also significant participation from stakeholders at the justice committee hearings before the bill was passed. He noted that further consultation risks fatigue amongst participants.

“That’s going to put demands on all of us who were consulted the last time around, but perhaps particularly on racialized and vulnerable communities,” he said.

Asked how the proposed consultations will be different from those just conducted, a spokesperson for the Ministry of Community Safety and Correctional Services said in a recent email: “We are going to consult with our community safety partners. We want to make sure that any legislation brought forward gives our police services the tools and resources they need to ensure community safety.”

Where does carding fit into all this?

Carding -- the practice of stopping, questioning and documenting someone not suspected of a crime -- is not part of Bill 175. Also known as street checks, carding was regulated by the previous Liberal government in 2016, creating new rules about when and how police stop citizens and aiming to ban race-based collection of identifying information.

But with talk of changes to policing and ensuring officers have the “tools” they need, critics including Horwath have asked whether Ford is “opening the door to carding once again in our province.” Ford has said he will not bring back the practice.

Tulloch, the judge who reviewed police oversight, is now more than a year into an independent review of the province’s carding regulation, which came into effect last year. Tulloch’s final report is expected in January 2019, and a spokesperson for the ministry of community safety told the Star last month: “We look forward to reviewing his recommendations. While we await the results of the report, Premier Ford has been clear: he will not bring back carding.”