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BCCLA’s Oral Submission to the Special Committee on Reforming the Police Act

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The Legislative Assembly of BC appointed the Special Committee on Reforming the Police Act to examine, inquire into, and make recommendations on reforms related to policing under the Police Act. Below is an adapted version of Harsha Walia’s oral submissions to the Special Committee on Reforming the Police Act. You can read a transcript or listen to the audio of the full presentation here. We will also be providing a lengthier written submission in April, stay tuned!

The BC Civil Liberties Association is the country’s oldest civil liberties and human rights organization. We have been advocating for law reform, litigating in the courts, and presenting at numerous public inquiries on policing issues for six decades. This has included the APEC inquiry, Davies Commission Inquiry into the Death of Frank Paul, Braidwood Inquiry into the death of Robert Dziekanski, Missing Women Commission of Inquiry, and the National Inquiry into Missing and Murdered Indigenous Women and Girls. We have also litigated in a number of court cases to limit police powers of entrapment, search and seizure, and illegal spying.  We have sought justice for victims of police killings.

The history of policing has always been intertwined with colonialism; the North-West Mounted Police was established in 1873 to displace and contain Indigenous peoples onto reserves, to enforce the extra-legal pass system, to punish the practice of Indigenous cultures and ceremonies, and to force Indigenous children into residential schools.

Any investigation into reforming policing must contend with policing as a pillar of colonialism and enslavement. The National Inquiry into Missing and Murdered Indigenous Women and Girls clearly highlights how the simultaneous overpolicing and underprotection of Indigenous women, girls and two spirit people are two sides of the same colonial coin.

Our first recommendation is that the Province of BC must work with Indigenous peoples in BC to align the Police Act with the United Nations Declaration on the Rights of Indigenous Peoples. 

This includes, first, developing provincial guidelines for the non-enforcement of criminal charges against Indigenous land defenders and nations asserting Title and Rights on their lands and waters. This was starkly evident in the militarized policing raid on Wet’suwet’en territories last year and the subsequent arrests in urban centers during Indigenous-led Wet’suwet’en Strong solidarity actions as well as protests against the TransMountain Expansion project. Such policing operations act as a blatant tool of continued colonial criminalization and violation of the province’s Declaration on the Rights of Indigenous Peoples Act.

Second, Indigenous peoples must have the full opportunity to participate in, guide, and consent to any future draft bill to reform the Policing Act prior to its introduction. This includes obtaining free, prior and informed consent from each Indigenous Nation before subjecting them to municipal police forces or the RCMP in BC, and not withdrawing provincial program and service funding for any Indigenous Nation who does not consent to such policing.

Finally, Indigenous Nations whose members and territories are being policed by colonial law enforcement must have meaningful jurisdiction to negotiate policing services, as well as authority in civilian police board governance and oversight bodies.

Our second set of recommendations is to shift resources from policing to community safety and to decriminalize social issues.

Waylon Jesse Edey, Travis Rood, James Reginald Butters, James Daniel McIntyre, Hudson Brooks, Myles Gray, Kenneth Robert Hanna, Craig Andrew Ford, Dale Culver, Kyaw Din, Clayton Donnelly, Barry Shantz, Everett Patrick, Chester, Julian Jones.

These are the names of people killed by police and in police encounters in the past five years in BC. We don’t have the death penalty in Canada, but we give police the lethal power to take a life – even when they are supposed to be trained not to have to kill, even in the most escalated scenario. Across the country, Indigenous and Black people are disproportionately killed by police. Indigenous people are 16 percent of those killed by police, but only 4.2 percent of the population. Black people are 8.6 percent of those killed by police, but only 2.9 percent of the population. Furthermore, 68 percent of people killed in police encounters were impacted by mental illness or substance use. BC has the shameful honour of the country’s highest rate of police-involved deaths.

British Columbia needs to boldly choose differently and to radically transform policing. Growing proportions of government budgets go into policing, with no legislated audits or evaluation. There is actually very little independent evidence that policing in BC works.

In fact, reams of evidence suggest the opposite.

When it comes to domestic violence, Battered Women’s Support Services reports that survivors of domestic violence—not the perpetrators of violence—are often wrongfully arrested, especially if they are Black, Indigenous, or immigrant women of colour whose first language was not English. In a DTES women’s safety audit, only 15 percent of women said they would go to the police if they felt unsafe. The provincial Missing Women Commission of Inquiry and the National Inquiry into Missing and Murdered Indigenous Women and Girls both highlight the complete neglect, failure, violence, and racism of police forces.

When it comes to the Hub Model or Situation Tables intended to support vulnerable women and youth, an investigation showed that, even though the purpose of Situation Tables is to reduce police involvement, police in BC were the ones leading interventions on Indigenous and immigrant women and youth. Furthermore, sensitive personal information being shared between agencies and with law enforcement without consent likely constitutes an illegal breach of privacy.

When it comes to ACT teams (a policing and mental health treatment collaboration), there is no evidence that police-embedded ACT teams are working well in the province. Dr. Craig Norris’s research suggests the opposite: that the presence of police is likely detrimental. BC stands out in comparison to other jurisdictions where mental health teams do not necessarily involve police and, instead, fully-resourced mental health paramedic services are first responders.

Why do we assume that all social crisis must be solved through policing? Approximately one in five interactions with police in Canada involves someone with a mental health or substance use problem. Police should not be the first and only solution to so many social issues—ranging from mental health wellness and supporting youth in schools to victim services for survivors and responding to racist hate. No one profession can be expected to respond to and have the skills to respond to such an array of life-altering issues.

On top of that, we know now more than ever that police are almost universally mistrusted by Indigenous, Black, racialized, migrant, undocumented, sex worker, drug user, and homeless communities. These communities are already criminalized by a matrix of criminal, child services, and immigration laws, yet we compel them to accept social supports in the forms of police wellness checks, police liaison officers in schools, police officers in social housing, police embedded in mental health teams, and police-side victim services.

We recommend that the Police Act must be reformed to limit the scale and scope of policing power, and policing resources must be re-directed to non-policing community-based services and upstream safety solutions.

Our third recommendation is an end to the criminalization of social issues.

Upstream community safety solutions include full decriminalization of sex work, decriminalization of drugs, decriminalization of public intoxication, decriminalization of poverty, decriminalization of immigration status, and the recognition of the sui generis nature of Indigenous protests. Decriminalization lessens how Black, Indigenous, and racialized communities are criminalized, stigmatized, and marginalized.

While many of these laws are federal, we recommend that the Police Act be amended to set provincial guidelines of non-enforcement and that policing forces be directed to not use provincial resources toward enforcement of these social issues.

Our fourth recommendation is an immediate ban on police street checks.

A street check is a discretionary police practice where police stop a person in public, question them outside the context of an arrest or detention including investigative detention, and often record their personal information in a database. Data over ten years, from every municipal force across BC shows that Indigenous and Black people are over-represented in and harmed by street checks. Street checks are not legally authorized by statute or at common law; therefore, the province must ban street checks immediately. Limiting police interactions with the public is necessary to maintain a free and democratic society.

Over 8,993 people and 92 organizations, including Hogan’s Alley Society, Black Lives Matter, Union of BC Indian Chiefs, WISH Drop-In Centre Society, and the BC Civil Liberties Association have been demanding a provincial and municipal ban on police street checks.

Our fifth set of recommendations concern the police use of force and weapons.

We are witnessing the unfettered increase in the militarization of policing. We recommend that the Police Act must place stricter limits on the use of weapons, including the use of police dogs and tasers, and also eliminate the use of full-body restraint devices. Further, tear gas is a chemical weapon banned in warfare by the 1925 Geneva Protocol and the 1993 Chemical Weapons Convention, but is used by domestic police forces. As recommended by international law and human rights experts, governments in Canada must ban the use of tear gas.

The province must also implement a no-carry policy in Indigenous, Black and low-income communities. This echoes and builds on the recommendation by the National Indigenous Justice Summit, convened after the police killing of Tla-o-qui-aht mother Chantel Moore, and the recommendation in Red Women Rising. As the BC Coroners Office has painfully detailed, 20 percent of those who died in interactions with police or within 24 hours of an interaction with police in BC were Indigenous people.

Our six recommendation is a moratorium on new police technologies.

Last month, four privacy commissioners released an unequivocal report on the illegal practices of Clearview AI and how 48 law enforcement agencies ran thousands of searches using Clearview AI’s facial recognition software database. This recent controversy highlights the rapidly expanding terrain of policing technologies with no regulation or oversight and with significant Charter, privacy, and constitutional implications.

We echo the recommendation by legal experts of CitizenLab that all levels of government must place an immediate moratorium on law enforcement agencies’ use of technology that relies on algorithmic processing of historic mass police data sets and on the use of algorithmic policing technology.

Our seventh set of recommendations is the overhaul of police accountability mechanisms.

First, police accountability mechanisms, such as the OPCC (Office of the Police Complaints Commissioner), IIO (Independent Investigations Office of BC), and CRCC (Civilian Review and Complaints Commission for the RCMP), must be truly and fully civilian. According to a Canadian Press investigation, the vast majority of independent investigators staffing policing oversight bodies in Canada are white men who are former police officers.

The province must ensure that the OPCC and IIO are fully civilian, with no investigators having a past law enforcement background, including in police, border services or security agencies. There is a need for community-based civilian complaint systems that are a counter to, not an appendage of, the police system. Civilianization also means an end to police investigating police. For example, when the OPCC receives a complaint about a police officer, they usually appoint another municipal policing agency to investigate. This must end.

Second, the mandate and scope of police oversight bodies needs a significant overhaul. This includes:

  • Ensuring that the findings of police oversight bodies are binding and enforceable, not simply flimsy recommendations.
  • Ending the CRCC and OPCC practice of “informal dispute resolution” between complainants and police officers that is inattentive to the gross power imbalance.
  • The OPCC being able to initiate their own investigations or hearings, and to shift investigations of police misconduct directly to the OPCC.
  • Similarly, the IIO should be given the authority to self-initiate public interest investigations and, as recommended in the Braidwood Inquiry, have an independent prosecution service.
  • We also echo the long-standing recommendation by Justice for Girls that the mandate of the IIO should be expanded to include sexual assault and gendered violence by police officers.
  • Police complaint mechanisms should incorporate principles of Indigenous conceptions of justice. We support the call by the National Indigenous Justice Summit for an Indigenous-led police oversight body with broad investigative powers.

Third, the definition of misconduct in the Police Act must be revised to incorporate the necessary lens of systemic racism, sexism, homophobia, transphobia, ableism, and classism. Oppressive statements and behaviour should explicitly constitute a public trust offence and require mandatory reporting. Furthermore, given the immense amount of power police hold, there should be a publically available database of investigations of officer misconduct.

Fourth, we echo the call by Pivot Legal Society that the province must guarantee legal aid funding for racialized police complaints to the CRCC, IIO and OPCC as well as for civil actions in court and for filing human rights cases against the police at the BC Human Rights Tribunal.

Our eight set of recommendations concern police governance.

The issue of police governance is in the limelight at the moment, with an undemocratic, appointed Vancouver Police Board appealing the decision of a municipal City Council to freeze the police budget. This is unconscionable as it makes local, democratic control over policing and calls to defund police essentially ineffective.

The lack of independent governance is also apparent in the provincial review, led by David Loukadalis, that is currently underway. This review is examining the Vancouver Police Board’s role and response to BCCLA and UBCIC’s service and policy complaint about VPD street checks. The actions of the Vancouver Police Board, including authorizing a draft copy of a street check report to be released to the VPD and then censored, is a violation of the Board’s civic trustee obligation. We recommend that police boards must be representative of communities most impacted by police violence and fully accountable to communities, not just providing cover to police departments.

Furthermore, unaccountable and private police charities, like the Vancouver Police Foundation, are the racial and class-based privatization of policing. We recommend that they not be allowed to supplement the public police budget.

Finally, like police oversight bodies, we recommend that the provincial Director of Police Services not have a policing background and must, instead, come from a civilian background.

 

Police are one of the most powerful institutions in our society. Demanding real and meaningful change in how we re-envision safety will require a radical transformation of the colonial disaster of our current policing systems.

Click here for our Toolkit for Submissions to the BC Police Act Review.