News Clips: I want to have a moment of silence for George Floyd.
Anger has been unleashed coast to coast after the death of 46 year old George Floyd and the overall mistreatment of black Americans at the hands of police.
Minneapolis police precinct three up in flames.
Three nights of unrest here in Detroit.
About a block away from the white house. We’ve had tear gas and flash bangs deployed on the crowd.
Continuing to fire at us. Okay. There we go. Here’s a gas canister.
Today in Manhattan, crowds marched peacefully, trying to bring the focus back to their message of justice.
Jordan: There’s a natural instinct that a lot of Canadians have, and it kicks in even when we’re grieving, with shock and sorrow. That instinct makes us look at the United States and feel better about ourselves.
It’s obviously not a great look for us as a country at the best of times. Right now, we are a long way from the best of times. And of course, anyone looking for examples of police brutality in Canada, doesn’t have to go that far.
News Clips: Bystanders cell phone video of Toronto Police Constable James Forcillo firing his Glock service revolver nine times at Sammy Yatim.
Constable Michael Theriault, and his brother Christian, are charged with one count each of aggravated assault, as well as obstructing justice. Now Dafonte Miller was 19 at the time when he was allegedly chased down by two men and beaten with a pipe so badly that he lost his left eye.
Regis Korchinski-Paquet fell to her death at her High Park apartment building Wednesday. Regis entered the apartment alone, followed by multiple officers. Moments later the 29 year old’s body was found on the front lawn having tumbled 24 stories from her balcony.
Jordan: Nobody knows yet what happened when Regis Korchinski-Paquet was alone with Toronto officer’s last week, but she fell to her death and they were there. And you can’t blame a community that has seen this movie before if they don’t expect a different ending. So what happens in these cases in Canada versus in the US? Where does our police oversight succeed and where does it fail? What’s changing and what isn’t? And what do we need to do, if we expect people to believe that we are making progress and the police are changing and we don’t have to tear the whole thing down? Can the system be fixed in Canada and in the United States, and if so, how? Actually, how? What now?
I’m Jordan Heath-Rawlings and this is The Big Story. Asha James is a lawyer with Falconers in Toronto. Her work focuses on human rights. She has worked on some of Canada’s high profile cases of police brutality. Hello Asha.
Asha: Hi Jordan. How are you?
Jordan: I’m doing okay. Thank you for joining us. I wanted to ask you, first off, just what’s been going through your mind the past week.
Asha: I think I would start as a black Canadian, as a black person, it’s sad and it’s disheartening and it is troubling to see these images of black males being murdered on TV. It’s not something that’s normal, and it’s difficult to watch.
Jordan: What have you felt while watching the protests that have gone on in the United States and also here.
Asha: So I think that the protests are an important first step, with respect to drawing attention to the issues, but the protest also needs to come with plans and mobilizations as to what’s the next step when you get their attention. And so if that includes voting people out of positions of power, who don’t take serious your agenda or things that are of concern to your community, that’s one thing, if it is advocating and campaigning for people who do share in what your agenda items are for unifying your community or having equitable treatment for people of colour, then that needs to be another step.
So, you know, while I understand the protests and I think that they’re an important first step, I hope to see the next steps follow in place as well.
Jordan: Well, I’m not a lawyer, I’m also white and I haven’t fought in the streets or in court for victims of police violence. So I guess what I want to know in terms of what those next steps are, is what should I be asking you as someone who tries to work through the law to help solve this problem about where we go from here?
Asha: I mean, I think in the law there are limits to really what can be accomplished, right? And if you look at it from a civil standpoint or from a criminal standpoint, one of the things that we have here, specifically in Ontario, that’s different in The States is that you have the SIU, the Special Investigations Unit.
So, it’s not the police investigating the police, where you have a situation, you have a police involved death with a member of the public and their same police service, their same detachment, their same unit is going to be investigating that officer. I think for most of us that just doesn’t pass the smell test. It doesn’t seem independent. So, you know, the fact that we have the SIU here, I think that’s important. It is a separate accountability mechanism. There are certain transparency requirements, and I know now the SIU is releasing a lot of their reports, if there are circumstances where they have not, laid charges against a police officer.
So I think those are definitely important steps that we have up here in the criminal setting. In the civil setting, you would just hope that if a police services are being sued enough for these types of incidents and the payouts are becoming big enough that they’re going to change the way they recruit, they’re going to change the way they train.
And when they see problem officers, they’re going to do things to address that through discipline or termination before it gets to a point where that officer is involved in a fatality.
Jordan: Have you seen that happening in the last few years?
Asha: I think the training has become better for a lot of the police services, just in terms of having real life scenarios where they are engaged with people from different cross sections of society, whether that be someone who’s suffering from mental health, whether that involves people of color.
I think the police services in the GTA have made a real push to have diversity and officers who come from the GTA. So it’s important that people live in the area in which they police because they understand the issues and the neighbourhoods much better than someone who’s coming from outside.
So if you have recruiting police officers, from the GTA, their understanding of the GTA is going to be different from an officer who comes from Timmins and now is going to become a Toronto police officer and has come down a few times to maybe go to a hockey game or a basketball game.
So I think those efforts are important. And I think that, you know, obviously we have to have more community engagement. Not just beat officers, but superiors are coming into the communities and listening to what their needs are, and figuring out ways that they can do that. And the community is receptive to having them there.
Cause you know, to me, those are all important factors when you know somebody and you interact with a police officer on a regular basis. And I mean, in a positive way. When they’re in your community, if something happens that officer will look at you differently, and you may not be viewed as a threat right away, just based on the color of your skin.
Jordan: I mean, I’m certainly the furthest thing from an expert here, but when I watch the protests and hear the protesters talk, their reality sounds so far away from what you just described to me.
Asha: It is, it is far away from what I’ve described. That is what we want to see. That is, you know, kind of what you hope that is being worked towards, but I will say that while we face a lot of the issues up here in Canada, I think it’s very different than it is in the US. They have a lot of very segregated cities, very segregated suburbs and we tend to not see that as much here. Definitely we do have pockets of the city where you’ll find an ethnicity or a race of individuals living there.
But to me it’s not the same as it is in the US. And so because of that, that the kind of policing interactions are somewhat different.
Jordan: Can you tell me a little bit before we talk a little more specifically about the Canadian system, about some of your work representing or working with victims of police brutality?
Asha: So our office has been involved in a number of cases and we’ve represented a number of families. The family of Junior Manon and the family of Sammy Yatim. Obviously every incident is different, but like I said, because of how we work here in Canada, there are I think more opportunities for family members to get a better understanding of what took place. Especially in circumstances where things are not caught on video. So if there’s going to be a criminal trial, there’s that. Our office does a lot of inquests, and anytime there is a death of somebody who’s in police custody, it’s mandatory in Ontario that you have an inquest and while the inquest is not assigning fault, they are trying to answer a certain number of questions. Who the deceased was, how they came to their death, by what means, and a family has a opportunity to meaningfully participate in that process. They can have counsel, they can call their own witnesses. They can call experts. Their counsel gets to cross examine the police officers that were involved in the death of their family member.
So it is a real opportunity for a family member to have a voice and to kind of get a better understanding of what took place and challenge those versions. And then of course we have civil claims that our office does where we’re suing police services, if there’s been some kind of excessive use of force, and many of those tend to settle outside of court.
They’re generally not the cases that, at least the high profile ones that you go through and are actually having a trial, they tend to settle, before we get to that point.
Jordan: So there are thousands of Canadians who were posting things to the effect of, ‘thank God we’re not like the United States’.
And then people would respond with, I mean, just last week we had a police involved death here in Toronto and it seems like we’re not immune up here. But how would you compare the two countries? It sounds like Canada is better at handling these things after the fact, but we still have a problem.
Asha: It’s definitely an issue where I don’t want to make it seem that we’re the model and we have everything figured out and we’re perfect.
No, that’s not the case, but we do have, I think, a little better oversight mechanisms. So again, things such as the OIPRD: the office of the independent police review director that, if your interaction with the police you believe that officer engaged in misconduct or you believe that that officer used excessive force in their interaction with you, but it may not rise to the level of criminal behaviour. So there is a completely free process that members in Ontario of the public can access and make a complaint about a police officer and request that the OIPRD investigate it, or request that it go to a different police service.
If it’s the Toronto police service, you can ask that York do it or Durham do it, or the OPP and vice versa. So it is an oversight mechanism, a civilian oversight mechanism that’s available. The same thing with the SIU, right? Obviously it’s on the tail end, but the more that those mechanisms are in place and they do their job when they’re supposed to, which is find misconduct if it does exist and charge police officers, if they have committed a crime, then officers obviously conduct themselves differently when they know that they’re not able to act with impunity and just do what they want. So that’s number one. And then number two, they’re still working on this. I think we’ve had the issues here in Toronto with the carding and that being disproportionately targeting communities of colour. But a lot of it, like I said, is going to come down to training and it’s going to come down to diversification of the police service, more women, more people of colour that once you start seeing that the police service that’s more representative of the community that it polices, then what you would hope is that those interactions become different.
It’s not a white officer who lives in Bowmanville and doesn’t interact regularly with young black boys and just thinks that they’re all a threat immediately upon their interaction. And that changes the way that they interact with each other. The officer’s more suspicious. He is less at ease with their conversation and feels like there is more need for him to assert authority. Then that obviously right off the bat changes the way that they’re going to interact.
Jordan: How do we get there from here? Do we need to mandate this? Does it need to come from the government, from the police union? I don’t understand the inner workings of how we’d actually get that done. Cause I agree that that sounds like a potential, a way to help things.
Asha: So I doubt it would ever come from the police union, but one could be hopeful. But to me, it’s on the municipalities and the service and the police services board to mandate those things, make them policies and hiring directives and recruitment directives.
And I know that there are services that are doing that and attempting to do that. You know, you’re just hopeful to see that that continues. And then the other thing is, once you get those officer’s in, you have to promote them, right. They have to become supervisors and superintendents and deputy chiefs and chiefs of police.
They also need to move up the ranks where they then have the ability to also hold officers accountable and call them on behaviour that they see as being problematic.
Jordan: As somebody who does this work, and is also a black woman. When you hear about a story like that of the death of Regis Korchinsky-Paquet last week, what goes through your mind both in terms of what’s happening and also what’s about to happen in terms of the process here?
Asha: Just from a human perspective the first thing is the condolences to the family. You know, that it’s such a sad situation, to fall I think it was 24 stories. That’s a horrific way for anyone to come to their death under any circumstances. So that’s number one then number two is that you want to get to the bottom of this and you want to know exactly what happened.
What took place? Why police were there, what they were told when they were called, who they met with what information they had and ultimately what interaction they had with her. And as a lawyer, and a professional and somebody who’s doing this work, that’s where I go back to the SIU.
Is that the SIU is going to do an investigation. And for the most part as I’ve seen, their investigations have been thorough. And I think that they do a good job of keeping families informed and updated on what information they found. Speaking to witnesses, speaking to other officers that are on the scene.
So those types of things that we have in place here gives me some level of comfort that at least we will get some truth as to what took place. My concern is at this stage is that they do a thorough investigation and uncover what what ultimately happened to lead to her death.
Jordan: When you see what’s going on in the States and then how the protests have been responded to, with images of a lot more brutality from the police. What do you think could happen there that will calm this down? I’m not expecting you to have the answers. It just feels like it keeps escalating and I don’t see what could end it.
Asha: I do think at least in Minnesota, I think that what they’re looking for, and they’re going to continue to March, and if they’re marching, then you’re going to continue to have an element that is more destructive than those who are just coming in protest and want to have their voices heard. And that you’ll get that response from police. But I think it is that they want the other officers to be charged. The other officers that were there and you can see from video that at one point in time, there were three officers, one on the knee on the neck and the other two appear to be on the back and the legs.
And then the other officer that was just standing there keeping watch. I would expect that if and when that’s done, then it may temper things somewhat.
Jordan: Why weren’t they charged? As a lawyer who’s seen that video.
Asha: I have no idea. It’s not a very high threshold to lay a charge. It’s reasonable and probable grounds to believe that a crime has been committed and they know what the elements of the offences are.
And I think the other issue that seems to be happening in the States a lot is that when they’re involved with Police officers, that prosecutors are making decisions more along the lines of if I’m going to get a conviction, as opposed to, is there sufficient evidence to lay a charge?
And I think that’s concerning to a lot of people.
Jordan: Have you seen that happen in Canada too?
Asha: No, you may get to a point where a charge is laid, and then the prosecutors at some point may make a decision, which they would do in all cases, not just cases involving police officers.
That they may not have all of the evidence to mete out the charge. And it’s not in the public interest to go forward with that. And there are different reasons that they would make such a decision, but generally somebody is charged and you at least go to court for one or two appearances before the crown makes such a decision.
Jordan: So with everything that you’ve explained to me about how this gets better from within police departments, after watching what we’ve all seen over the past week and not just in the United States, are you more or less hopeful that that is going to happen? In the next weeks, months, years?
Asha: I am a hopeful person. So I would say I am hopeful, but I think that a lot of it, it’s not just a single situation where, even in the situation in the States, even if all of the officers get charged, there’s has to be something, some culture that’s going on that permits that to feel like it’s okay or that you could get away with that. And that’s not going to change in weeks or months. That’s going to take years and years and years. Beause it didn’t start overnight. Systems of racism have been in place for a number of years. Decades, hundreds of years in the United States.
And so starting to create those changes, it’s going to take time. It really is going to create a culture where the good officers feel empowered to speak up and say, that’s not okay. Or report a fellow officer. To me that’s going to take a long time before we see that kind of change.
Jordan: Do you see that same culture in Canada?
Asha: Yeah, absolutely. You see that here. Everybody is concerned about themselves. They don’t want to be ostracized. They don’t want to be that officer. They don’t want to be looked over for promotions, as seen as not a team player or a rat. And so that pressure is there in that environment, and we see it up here too.
Like I said, the only difference in Ontario is that we have these civilian oversight mechanisms. So if the officer does something wrong in an interaction and you don’t say anything about it, well, then I can go to the OIPRD and complain about the officer that did wrong. And you officer that just stood there and let it happen, and there’s some discipline that could come out of that process that is not in play in the U S.
Jordan: What do you think about some of the more radical proposals such as severely defunding the police department or removing all weapons from officers? Would they help? Are they realistic?
Asha: I don’t see them as being realistic. I don’t see the removal of weapons from officers, and I know that the parallel or comparison that a lot of people try to draw is to England, where the officers really only have their nightstick. Beat officers don’t carry handguns and you know, I think that that would take some time to get used to.
In the sense that officers have always been trained, that they have these tools available to them. And you’ve ingrained that in an officer for 20 years and to change that. So I don’t know that that’s necessarily something that, one you will be able to do, and two I’m sure that police officers would not agree with that.
And I understand. Policing is also a dangerous profession and you want officers to be able to go home at night and we want members of the public to be able to go home at night. That’s what’s important. Everybody wants to be able to feel safe. To move about their community in a lawful and respectful way. With respect to the defunding police, I don’t see that that is going to be an option either. Municipalities will not go for it. Obviously I don’t think police services, you’re going to get much opposition from the associations. And I don’t think that we want to live in a society where there are no police services.
What we want to do is live in a society where the police are providing culturally responsive policing to all of the members of the community that they police and that they’re interacting with individuals in a respectful and lawful manner. And that just because the colour of somebody’s skin, doesn’t make them more or less prone to violence.
If we interact with each other with respect, hopefully that situations can be deescalated instead of escalated. We will have fewer of these incidents.
Jordan: I want to thank you for giving us nuance today on how this process works. If I want to learn more and understand the justice system in Canada and how this happens, where can I go?
Asha: If you want to learn more about the justice system in Canada, I think that one of the places to start is to look at some of the historic cases out of the Supreme court. Things where the court recognizes the issues of race, recognizes that the issues of racial profiling, you know, the Dee Brown case that we had here in Ontario, with the, the basketball player pulled over on the DVP. And it was one of the first cases where the court of appeal recognized the issue of racial profiling for people of colour and how that interacts and affects our interaction with police. And I think it’s important for people to understand what kind of oversight we have available to us here. The SIU, the OIPRD, obviously they have websites. I think it’s important for people to really understand specifically how the OIPRD works. They are able to review every interaction that a police officer has with a member of the public, as long as the police officer’s in the province of Ontario.
And so that people know that there are mechanisms available to them to try to hold police officers accountable if their conduct is not professional and is not appropriate for their dealings with members of the public.
Jordan: Thank you very much for your time today, Asha. That was great.
Asha: Thanks for having me.
Jordan: Asha James, a partner with falconers in Toronto. That was The Big Story. If you’d like more, you can find us at thebigstorypodcast.ca. You can also find us and talk to us on Twitter. We’re taking suggestions. What do we need to discuss? You can find us @Thebigstoryfpn. You can email us. The address is email@example.com. Thanks for listening. I’m Jordan Heath-Rawlings. We’ll talk tomorrow.
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