The committee met at 9:01 a.m.

[D. Routley in the chair.]

D. Routley (Chair): Welcome to our guests.

I acknowledge that I am participating in this meeting from the territories of the Malahat First Nation and how grateful I am to be able to work from their territory today.

With that, I would ask members to welcome our two guests from the independent investigations office.

Please go ahead and introduce yourselves.

C. Pecknold: My name is Clayton Pecknold. I’m the Police Complaint Commissioner. With me is the deputy commissioner, Andrea Spindler.

D. Routley (Chair): Apologies for the misnomer. It’s not the first time.

C. Pecknold: That’s quite all right. That’s what we’re here to do, to help clear up any of that….

D. Routley (Chair): Yeah. Well, that’s starting at the basics. Thank you very much.

Briefings on Police Act

OFFICE OF THE POLICE
COMPLAINT COMMISSIONER

C. Pecknold: Thank you to the committee for the invitation to provide you with an informational briefing on the role of the Office of the Police Complaint Commissioner, which, as you may be aware, operates within parts 9 and 11 of the Police Act.

Before I start, please also allow me to acknowledge that I’m speaking to you today from the traditional unceded territory of the Lək̓ʷəŋin̓əŋ-speaking peoples and of the Songhees and Esquimalt First Nations.

As I said, Deputy Commissioner Spindler is with me, and she and I will both be going through the presentation we’ve provided to you. I will go through some background and an overview of the work we do. Then we will explain in a little bit more detail how the legislation works from a complaint to an investigation to an adjudication, if in fact that is something that needs to occur.

We will also give you some insight into our race-based data in consideration of your mandate regarding systemic racism and discrimination and, I would note in the context, the information you’ve received from other presenters.

Given that parts 9 and 11 account for, if my math is correct, about 65 percent of the act as it exists, we thought it important to outline to you in some detail how the discipline process works and the complexity within it. Again just based on my rough math, there are about 118 sections of the act devoted to the work of our office and, by contrast, about 11 devoted to governance. One could argue that governance is at least as important as the accountability work that we do.

The Police Complaint Commissioner is appointed and functions within the overall statutory framework regulating the police in British Columbia. That is the Police Act. We do not fall within a stand-alone statute, as is the case of many other officers of the Legislature. I’d note that we are, in fact, a creature of that statute, and any exercise of our authority must, therefore, derive from it.

[9:05 a.m.]

Our role within the framework is to oversee and monitor complaints, investigations and the administration of discipline proceedings concerning the municipal police officers appointed under the act. They would be officers who are appointed pursuant to the Police Act.

The work of our office is connected, as I said, to the overall regulatory framework. This means that, critically, intersections occur between our responsibilities and the work of other agencies responsible to provide oversight or regulatory oversight, such as provincially appointed police boards or the Ministry of Public Safety and Solicitor General.

We fulfil our mandate as an independent officer of the Legislature, independent of police and government and reporting to the Legislative Assembly. We are guided, as I say, by the statutory powers that are granted to us by the Legislature.

What we do occurs on a spectrum of functions that all are intended to operate independently but with common alignment to the public interest. The overarching objective for all — and that is including police officers themselves — is a shared commitment to upholding British Columbia’s continued public confidence in policing. This is the objective that was reflected in the 2007 report of the late Justice Josiah Wood, from which many of the policy considerations underpinning the present parts 9 and 11 of the act were drawn.

The OPCC is an organization consisting presently of about 21 FTEs with backgrounds in law, academia, policing and oversight. At this point, about two-thirds of our employees have no policing background. The majority of our staff are engaged in the oversight of complaints and investigations into allegations of misconduct. We also oversee, as you will see, an arm’s-length adjudication process which employs retired members of the judiciary, who are appointed in consultation with the Associate Chief Justice of the Supreme Court.

Of the approximately 9,000 police officers in the province, roughly one-quarter are provincially appointed officers which fall within our jurisdiction. The balance, as you may be aware, includes RCMP officers serving federal, provincial and municipal duties in a broad range of capacities and locations. RCMP officers are excluded from our jurisdiction.

The work of our office within this process reflects a model of police agencies being responsible to actually conduct the disciplinary investigations themselves and, in the first instance, to adjudicate them. Overlaid over this is the civilian oversight of our office.

The courts, in a decision called Florkow, described our work. The Court of Appeal characterized part 11 as “highly specialized labour relations legislation dealing with the employment of police officers and the protection of the public by means of the disciplinary tools provided by statute.”

The court described our role as a gatekeeper or a supervisor, noting that we do not decide complaints on their merits but instead ensure that the misconduct on the part of police is appropriately dealt with and is in the public interest and in accordance with the act. Unlike the IIO, for example, we do not directly investigate matters.

The court also described part 11 as “complicated and dense.” Nonetheless, they were of the view that it “represents a concerted attempt by the Legislature, acting on the advice of many stakeholders and various commissioners, to balance the interests of the public and the interests of police officers whose conduct must be scrutinized.”

I would also think it’s important to add that, as part of this balance, part 11 states that preventing, correcting and educating in relation to misconduct is a stated objective of the discipline process. It is mandated to take precedence over other approaches, unless to do so would bring the administration of discipline into disrepute. This also, I suggest, reflects the fact that these matters are being decided within the employment context.

Discipline processes were also recently examined by another special committee, of which some members of this committee, I believe, were a part. That was the Special Committee to Review the Police Complaint Process. It issued a report in late 2019, resulting in 38 recommendations directed at the provincial government, the Legislative Assembly and our office. Among these recommendations are those aimed at improving legislation, efficiency and effectiveness of the discipline process, as well as improved outreach and accessibility of the process.

[9:10 a.m.]

You have heard from others that the oversight of British Columbia spans a spectrum of agencies. We are, of course, the agency responsible to oversee investigations into allegations of misconduct in the discipline context, but of course, oversight, more broadly, rests across many other important entities. For example, sections of part 11 envision referral from our office of matters to government, i.e., the director of police services, or to the B.C. prosecution service or to the independent investigation office or, most notably, to the governing bodies of police boards.

Just by way of illustration, several sections describe the relationship between the Ministry of Public Safety and our office. For example, and this is just one example, sub-subsection 177(4)(d) empowers the commissioner to make recommendations to the director of police services or the minister that they conduct a review, study or audit in furtherance of the development of training programs designed to prevent recurrence of any problems revealed by the complaint process.

We therefore have a mandate, within that section, to identify causal factors, such as gaps in training, in supervision or in policies, wherever they present themselves so as to contribute, with those other agencies, to addressing them holistically and to assist agencies to prevent future recurrence.

The intent of the amendments from 2010 was that our oversight would be contemporaneous. Within the statute are various criteria governing the decisions, both for our office and the participants in the process, including investigators, discipline authorities and others. You’ll hear more from the deputy on that.

In practice, our oversight is achieved through the various legislative tools that are in the statute. This includes the ability to assess and admit complaints from the general public, to independently order investigations, to assign investigations to police agencies external to the police force concerned or to direct specific investigative steps in the process related to the gathering of evidence. I would also note, though, that Police Act investigations are generally suspended where there is a related criminal investigation or prosecution underway and there is a risk of prejudice to those processes.

When evidence is gathered in discipline investigations, it’s done so to a civil standard of admissibility. This is noteworthy because, under discipline investigations, officers may be required to give statements or answer questions. Officers are also under a duty to cooperate with our office, and from a public accountability perspective, these powers and tools are to ensure a complete and thorough examination of the matter.

We also operate within a framework which allows for interest-based resolution of complaints. In some cases, upon the filing of a complaint, the complainant will have the option to indicate whether they would like to resolve the matter through an alternative dispute resolution process. For these complaint resolution processes, it means the complainant will work with the police investigator, under our oversight, to reach a meaningful result.

We also have a mandate, under section 177, to provide outreach programs and services for the purposes of informing and educating the public and to consider the informational needs of British Columbia’s diverse communities. We maintain a list of support agencies to assist complainants in navigating that process. I would note, though, that the process is lengthy and complex at times, and it can be difficult for them to navigate without assistance.

We have not, historically, collected data on ethnicity but commenced to collect race-based data in recent years. Currently race-based data is collected relating to complaints filed by members of the public. There’s a slide in the presentation that the deputy will walk you through in more detail, but I’d note that matters which come to the attention of our office are either generated by complaints coming forward from citizens or self-reported by police agencies, where they request we order an investigation or they otherwise are mandated to report to us. I’d note, therefore, that the sampling is small.

While complaints remain a small subset of the overall daily interactions between the police and the public, it is also important to recognize that under-reporting due to access barriers related to, for example, language, pre-existing vulnerabilities or awareness of our process, is very likely present. In this respect, we agree with other speakers who have identified the need for uniform, contextualized and safe collection of race-based data.

[9:15 a.m.]

The deputy will walk you through an overview of the process, including the adjudicative process, and then I’ll have some further comments.

A. Spindler: Next slide, please. I thought it might be helpful to see in a single place how we work in relation to the complaints process. As the commissioner mentioned, the complaints process has been described by the courts as dense and complicated. This flow chart attempts to distil this process. However, what is not shown here is the myriad of statutory timelines, various roles and rights of the parties and all the pathways that are outlined under part 11 of the act.

A complaint can be submitted to our office in a variety of ways. It can come online, over the phone, in person or at the police agency. The commissioner can also independently initiate investigations in the absence of a complaint, and there are also mandatory investigations whenever an incident with police causes serious harm or death.

All complaints are reviewed by this office for admissibility to determine whether there will be an investigation into the complaint. Admissibility reviews are statutorily defined, and they must meet three criteria: it must contain an allegation of misconduct as defined under the act, it cannot be frivolous or vexatious, and it must be made within 12 months of the conduct being complained about. The commissioner can extend this limitation period if there are good reasons for doing so and it is not contrary to the public interest.

All complaints are reviewed at the front end for suitability for diversion to a complaint resolution process. Ultimately, the decision to engage in an ADR or an alternative dispute type of resolution process is at the discretion of the police department and is contingent on the willingness of the respondent member involved and the complainant to engage in such a process.

There will be some complaints where the allegations of misconduct are not suitable for diversion to a complaint resolution, and there will be a need for a full investigation. As Commissioner Pecknold noted, the OPCC actively reviews investigations that are conducted by police to ensure those investigations are thorough and complete and are conducted impartially.

In practical terms, an investigative analyst with the office will be paired with a police investigator. This investigator is usually part of that police agency’s professional standards section. There is regular communication between that investigative analyst and the investigator regarding the complaint or the file. Investigation plans will be discussed, and there are opportunities to discuss relevant and material investigative steps that may be required.

The investigative analyst will review investigative materials as they are provided to this office throughout the course of the investigation, and the analyst can offer investigative advice to that investigator. In some cases, the commissioner can direct investigate steps be completed.

Investigations can vary significantly in complexity in both the nature and seriousness of the misconduct alleged but also in the procedural pathways a complaint may take. Investigations must be completed within six months unless an extension has been granted by this office.

Once the investigation is complete, the investigator will submit a final investigation report, which will summarize the allegations of misconduct alleged and provide summaries of the evidence of those investigative steps. The OPCC will review those reports and the investigation to again ensure the investigation is thorough and complete. Further investigation can be directed by this office at this stage.

Discipline authorities, who are chief constables or a designated senior officer at the police agency, will review that report and the investigation completed and will determine whether there is sufficient evidence to proceed to the disciplinary phase. That is, the discipline authority will make a preliminary finding on whether there’s the appearance of misconduct by that officer. As Commissioner Pecknold mentioned, findings of misconduct are assessed on a civil standard of proof, which is a balance of probabilities. If misconduct is found, then the matter will move to the disciplinary process.

[9:20 a.m.]

At this stage, disclosure of the investigative report and decision of the discipline authority occurs and will be released to both the complainant and to the involved member. If there are no findings of misconduct made, the complainant will have a right to request the commissioner appoint a retired judge to independently review the matter and come to an independent decision on whether misconduct occurred.

Most discipline matters can be streamed through pre-hearing conferences, which are, without prejudice, confidential proceedings between the police department and the member involved, where disciplinary or corrective measures are agreed upon. The OPCC reviews all outcomes of these, and if the commissioner considers that the measures are not appropriate or adequate, considering the circumstances of the misconduct, we can reject the discipline and direct that the matter proceed to a discipline proceeding.

It is important to emphasize, as Commissioner Pecknold mentioned earlier, that the act expressly notes an approach that seeks to correct and educate is to take precedence, unless it is unworkable or would bring the administration of police discipline into disrepute.

The other disciplinary option is a discipline proceeding. These are also not open to the public. At this stage, the OPCC performs primarily a monitoring role. These proceedings are hearings conducted by the discipline authority, who has overall responsibility for the processes and decisions made — including whether to grant further investigation as requested by the involved police officers or grant that police officer’s request for witnesses to appear at the hearing — and also, finally, deciding whether or not an allegation of misconduct is found to be proven and, if so, what disciplinary or corrective measures are appropriate.

At the conclusion of the disciplinary proceedings, consistent with our supervisory role, the OPCC will review the matter to determine whether further adjudication or an independent review by a retired judge is required. Persons who make complaints about misconduct or those who may have been affected by alleged police misconduct have limited rights of participation during this disciplinary stage. In some cases, they may receive information, they may make submissions, or they may request reviews of the decisions.

Given the complexity of the complaint process, where complainants do not have legal representation, the OPCC must take special care to ensure these complainants know and understand their rights in the process, consistent with their general obligation to inform, advise and assist the parties.

As mentioned, there are three types of OPCC-initiated reviews: one that can occur before the disciplinary process that I described, and two others that can occur after the disciplinary phase. In relation to what can occur before the disciplinary process, this is where the commissioner can appoint a retired judge to review the decision of a discipline authority to come to an independent decision on whether there was an appearance of misconduct committed by that officer.

Then there are two types of OPCC-initiated reviews that can occur after the disciplinary process. Those are called reviews on the record, and public hearings.

Reviews on the record are a form of adjudicative review in which the adjudicator, who is a retired judge, conducts a paper review of all the evidence and materials from both the investigation and the discipline hearing. The adjudicator may also receive submissions from the respondent member through his or her counsel, the Police Complaint Commissioner’s counsel as well, the complainant and the discipline authority before rendering a decision.

Public hearings. These are a full public airing of the circumstances de novo, before a retired judge acting as an adjudicator. What this means is that the public hearing is not limited to the evidence and issues that were canvassed at the discipline proceedings. Evidence is presented by a public hearing counsel, with witnesses who are cross-examined under oath, and there is the possibility for the participation of all parties, including complainants or affected persons. The OPCC is represented by commission counsel, who is responsible to ensure that public interest considerations of transparency, accountability and fairness under the act are in the forefront.

[9:25 a.m.]

In both public hearings and reviews on the record, the adjudicator can also make recommendations to the police department regarding any changes to policy or practices that may be required. Overall, timeliness along this complaints process that I’ve described can be impacted by a variety of factors. There may be parallel or concurrent criminal proceedings. There may be judicial review applications that must go through the courts. There may be directed investigative steps and also, in some cases, the availability of counsel.

Division 5 of the Police Act accounts for service or policy complaints. One of the mechanisms provided for in the act is the ability of members of the public to make complaints regarding the services and policies of police departments. Under part 11, service and policy matters can cover a broad range of matters concerning the general direction and management or operations of a municipal police department or the inadequacy or inappropriateness of its functions, such as staffing, resource allocation or policies, among other subjects.

These complaints fall to the governing body, which is the police board, to address, under the limited oversight of the OPCC. This provides a direct and transparent accountability mechanism to the public for the delivery of police services within that community.

Police boards provide a critical role in the prevention of misconduct or in addressing broader concerns from the public. For example, the act provides that the board must make rules for the prevention and neglect by officers. Additionally, the act provides that boards may study, investigate and prepare a report on matters concerning policing, law enforcement and crime prevention in its municipality.

The broad definition of matters to be considered as service or policy can sometimes create confusion for complainants who may not understand the role of police boards in relation to the departments they govern.

The OPCC’s role in these matters is to ensure that they are processed transparently, according to the act, and that the complainants know and understand their rights. For example, if a complainant is dissatisfied with a response, they may request a review, and the OPCC may remit it back to the board for further consideration, in some instances. The OPCC may also make recommendations to the director of police services, who may exercise one of their powers — for example, to conduct a study or audit. In all cases, the recommendations made by the commissioner are not binding.

Division 6 of part 11 deals with internal discipline matters. These are matters that do not fall under the public trust provisions of the legislation. They typically involve the deportment or conduct of a member that does not involve or affect a member of the public and where no complaint has been received and no public trust investigation initiated. Examples can include not following the order of a supervisor, violations of a department’s respectful workplace policy or failing to follow other internal department policies. Any serious misconduct, regardless if it happens in the workplace or not, is generally dealt with by way of the provisions of public trust. The OPCC has minimal involvement in internal discipline matters.

Statistics and public reporting. The act contains strong privacy and confidentiality provisions which significantly limit what information is available to the public or can be released about specific cases. However, transparency is an important facet of oversight. This requires the balancing of privacy interests of police or other affected parties and the need for public reporting on matters that affect public confidence in police.

The OPCC has a mandated responsibility to publicly report descriptive-type statistics such as the frequency and types of complaints and the outcomes of those complaints and investigations, the demographics of those making complaints and any trends identified relating to the aforementioned. In addition, for transparency, the OPCC also publicly reports out on all allegations of misconduct that have been found to be substantiated and the discipline or corrective measures that were imposed. What we release are synopses or summaries of each of those allegations of misconduct.

[9:30 a.m.]

Also, all decisions by retired judges following an OPCC-initiated review are posted publicly to the OPCC website. Lastly, all commissioner recommendations made to police boards, the director or the ministry and their responses to those recommendations are included annually in the OPCC annual report.

This slide here shows a snapshot of our statistics from last year, indicating how many public complaints we’ve received in relation to alleged officer misconduct, which was 537. We received 39 service or policy complaints. Then as mentioned, when we go through that admissibility process to determine how many investigations will move through the process, about half of those meet the statutory definition of an admissible complaint.

In looking at those allegations that do go forward, where types of misconduct are being alleged, we find, generally speaking, on average, just under half of allegations admitted relate to policing powers and allegations of abuses of those powers in relation to arrests, detentions, uses of force, searches. The second-highest category relates to what is called a neglect-of-duty misconduct allegation. This relates to inadequate investigations, charter breaches, lack of notes or failures to follow certain departmental policies.

With complaints that get diverted from investigation through to a complaint resolution process, about 39 percent of admissible complaints that are admitted are resolved through this program. Also, in addition to complaints, the commissioner can independently order investigations. Last year, the commissioner ordered 97 investigations, and 67 percent of those were at the request of the policy agency.

This slide here is on the demographics of persons who make complaints. The OPCC has a statutory responsibility to collect and release demographic information on persons who make complaints. The demographic information collected by the OPCC includes age, gender and race or ethnicity. Providing this information is voluntary. In addition, complainants are asked to self-identify both their gender and their race or ethnicity.

Looking at the data from last fiscal year, most complainants were between the ages of 25 and 44. Of those complainants who provided their gender, 37 self-identified as female, 63 percent as male and two as transgender.

In terms of race and ethnicity, 75 percent of complainants who filed a complaint with this office provided this information. Of those complainants who provided this information, 55 percent self-identified as Caucasian, 12 percent as Indigenous, 8 percent as East Asian, 7 percent as South Asian, 4 percent as Black, 4 percent as Middle Eastern and 3 percent as Latino.

That concludes my portion of the presentation.

C. Pecknold: I just have a few concluding comments. I’ll be just a minute.

As I’ve mentioned briefly, the committee will have recommendations from the prior special committee, but I’d like to just highlight one that I think is important. There are recommendations for a number of reforms to promote efficiency and effectiveness. As I’ve noted, part 11 is dense and complex. Amendments that promote early resolution of minor matters, reduce conflicting timelines and generally improve timeliness would be in the interests of both complainants and police officers alike.

There is now an opportunity to review a ten-year body of experience with the legislation, including considerable jurisprudence. I would respectfully suggest that it’s an opportune time to reflect on those learnings and consider whether the balance referred to earlier by the courts is in place.

Finally — as has been, perhaps, well identified — the legislation is premised upon, essentially, an adversarial justice model. As I understand from Deputy Minister Caul yesterday, this is the first legislation to be reviewed under the Declaration on the Rights of Indigenous Peoples Act.

[9:35 a.m.]

We know that you’ll be doing considerable consultation with respect to that with Indigenous leadership organizations and others, and we would suggest you consider how the legislation can expressly incorporate and reflect Indigenous justice principles within it.

Those are my comments. I’m happy to, obviously, take questions.

D. Routley (Chair): Thank you, both, very much.

D. Davies (Deputy Chair): Good morning. Thank you very much for the presentation. It is good to see that you do keep a lot of data and such. That is something, as we’ve heard from other presenters, that seems to be lacking. It looks like there is a fairly good piece.

I do have a couple questions. One is, I guess…. We recently had, as one of our presenters, the independent investigations office. I see many similarities between what they do and what you do. I just wondered if you could take just a moment to explicitly explain the real differences between these two organizations, to make sure that there’s not this redundancy happening. If you could just take a moment to do that.

Then I do have another question after this, Chair.

C. Pecknold: Certainly. I’ll try not to speak for the IIO. I know you heard from the IIO, but essentially, the IIO, of course, is an investigative agency. They’re defined as a police force in British Columbia.

They conduct their critical incident investigations to a criminal standard. They are, de facto, criminal investigations, even though they don’t necessarily result, in all occasions, in charges. Therefore, of course, their investigations are covered by the legal rights under the Charter, and officers have a right against self-incrimination. They must meet a higher standard of proof — i.e., a criminal standard of proof — and all the facets associated with what could possibly be a criminal justice prosecution.

Our investigations or, more precisely, the investigations we oversee are employment-context disciplinary conduct investigations. They require a civil standard of proof. They follow civil-standard rules, and we follow a body of administrative law.

There is apparent overlap, in the sense that it’s often concurrent. There can be both a conduct investigation and an IIO investigation at the same time. I would note that the Supreme Court — I believe it’s in a case called Jarvis — clearly delineated the difference between collecting evidence under a regulatory authority and under a criminal authority, and those things are, primarily, mutually exclusive. Evidence gathered in a discipline process or a regulatory process is generally not admissible in any criminal processes.

A. Spindler: If I may just add, also, the mandate of the IIO relates to serious harm or death. That’s where their mandate is focused in on — those incidents that result in serious harm or death — whereas the issues that come to the attention of our office are much more broad.

D. Davies (Deputy Chair): Great, okay. Thank you. That does help.

Another question I had, just looking at some of the statistics that you had collected…. I’m just wondering, in investigations that you have received — and it looks like you’re pretty easy to get a hold of by email, phone and other ways — how many of your investigations with the OPCC have been based around racial complaints.

C. Pecknold: We don’t track complaints based on whether they have a component of racism within them. The deputy can explain a little bit more.

There’s only one provision of the conduct offences that specifically refers to that, but issues with respect to allegations of racism may come up, for example, in violations of respectful-workplace policies. It may come up with what are discriminatory practices in terms of the exercise of authorities, or it may come up in what might be described as overt comments by police officers with respect to race.

[9:40 a.m.]

We don’t track those specifically in terms of the underlying allegations. We track them according to the way the statute lays out the offences. I will note that one of the recommendations from the special committee is that we gain some better data analytics capacity. We have incorporated that into our planning. We made a budget request prior for more data analytics capacity, and we’re going to be renewing that request. This is, certainly, an area where we would need to do some deeper dives and some qualitative assessment.

Andrea, do you want to add to that?

A. Spindler: Certainly. There are, essentially, 13 areas that can constitute what is called a disciplinary breach of public trust — i.e., misconduct under the Police Act.

As the commissioner has indicated, there is one subsection of a misconduct that speaks to language that is specifically used and that is alleged to have been used by an officer. It tends to demean or show disrespect to that person on the basis of their race, colour, ancestry, place of origin and others.

When we see complaints from members of the public, they’re often in relation to concerns about, say, racial profiling or discrimination or racism. They often arise in the context of other types of allegations of police abuses of power, such as arrests or detentions or stops. They’re captured under the other allegations of misconduct.

There is no specific subset of an allegation specifically around racism. So our office tracks data and allegations based on what’s defined by the statute.

D. Davies (Deputy Chair): Just a follow-up, then. Of the 537 complaints that your office has received in 2019-2020, there have been no direct complaints received around a race issue, but there’s anecdotal evidence within numerous cases. Is that what I’m hearing?

C. Pecknold: No. I’m sorry. Perhaps we can elaborate.

We get complaints periodically and with some regularity about allegations of, perhaps, direct racist comments or allegations of, as the deputy mentioned, discriminatory practices. We just don’t track them based on that. We could, I suppose, do some deep qualitative analysis.

No, they’re not…. They’re tracked according to the allegations that are laid out in the Police Act. But let’s be clear. They do come forward on occasion.

Now, they would be examined in the context of the overall evidence — what occurred, what the officer was doing. For example, if there was a traffic stop and an individual alleges that they were stopped because of their race, then that will form part of the investigation that will occur. The actual allegation may be abuse of authority, for example.

D. Davies (Deputy Chair): I find that quite interesting. I would think that that would be a piece of information that would be collected and tracked.

Now, I understand…. You mentioned that that is a place that you’re looking at reforming or improving. So that is a good thing.

Last real quick question. How many staff do you have? How many investigators do you currently have in your organization?

C. Pecknold: We don’t have investigators, just to reiterate. The investigations are done by the police. We have analysts and oversight bodies. I’m sorry to be particular about that, but it seems like a common misperception that we conduct investigations.

We have about 21 staff overall now. That will fluctuate sometimes.

Of those, Andrea, how many are analysts?

A. Spindler: Right now we have about 11 who do analyst-type work.

D. Davies (Deputy Chair): Okay. Thank you.

K. Kirkpatrick: Thank you very much. That was really interesting.

Just to tag on to what MLA Davies asked. I’m having a hard time seeing — it’s kind of cut off on my screen — the ethnicity of persons filing police complaints. What was the number of Indigenous persons filing complaints?

A. Spindler: My apologies. They accounted for about 12 percent of complaints.

[9:45 a.m.]

K. Kirkpatrick: So 12 percent of complaints. I was just trying to get a sense…. They’re disproportionately represented in interactions with police. So I would have presumed that that percentage would be higher, based on the interactions with police. It just makes me question if there are any barriers for Indigenous People to be able to come to your office.

I don’t know if that’s an observation or a question. I’ll give it to you as a question, to start with.

C. Pecknold: Thank you. That is a very good question.

First of all, I’d just emphasize that that’s 12 percent who self-identified and is based on the agencies that we’ve overseen — remembering, of course, that we don’t oversee the RCMP.

I think your colleagues who were on the Special Committee to Review the Police Complaint Process will say that they heard very clearly that access to our processes, especially from Indigenous persons, is an area that needs work.

It’s highly complex, as I say. It can be adversarial. There is evidence from organizations, through that process and from our outreach activities, that raised concerns about access to our process because of how complex it is and other areas like that.

I don’t know if you want to add anything, Andrea, to that question.

A. Spindler: Yeah. In some of the early work we’ve done to try to understand some of the barriers to access…. There are barriers to access. From some of the early engagement that we’ve done, one of them is general awareness. A lot of people aren’t aware of the Office of the Police Complaint Commissioner and aren’t aware of how they can go and file a complaint.

Then there is understanding…. Well, what is the jurisdiction of the OPCC? Oftentimes people don’t see the distinction between municipal police and the RCMP. They just see police. Our mandate is specific to municipal police officers. So there is some confusion by the public in relation to the oversight systems between the RCMP and municipal police.

Also, there is a general complexity in the complaints process, in accessing it and in being able to have culturally specific agencies who can help facilitate that access to the office.

Those are all areas that we are thinking about. When you look at those stats in terms of who’s making a complaint, that tells me who’s not accessing our office.

K. Kirkpatrick: Thank you very much. Just another question.

My understanding is that you don’t adjudicate the complaints, but you initially look at the merit as to whether there should be a complaint. You do that first piece, which is like a conflict resolution. Is that right? Do you have a mediator? And then, depending…. In that process, if there isn’t a successful outcome, then you actually will make the recommendation to an investigative group. Is that…?

C. Pecknold: The first stage is what’s called an admissibility assessment. We examine whether the complaint meets the requirements of admissibility under the act.

Once an admissibility assessment is done, if it’s admitted, it can be then diverted to a complaint resolution process. But first it’s determined whether it meets the requirements of the act to be an admissible complaint.

K. Kirkpatrick: Do you give…? You make recommendations on going to an investigation. Are you also a resource for those who are investigating or adjudicating the complaint, in terms of being able to provide information on points of law or other things that they may be seeking in terms of making their decision?

C. Pecknold: We have a broad responsibility to inform, advise and assist the participants. That would include complainants. That would include discipline authorities. It would include retired judges who, I would emphasize, make these decisions at arm’s length from their office. They’re not our adjudicators. We also have a broad responsibility to provide them with support and information.

Some of the recommendations that came out of the special committee report are to improve our ability to provide decision-makers with, for example, a discipline database. That’s something that we’ve incorporated into our planning. A number of initiatives that we’d like to undertake.

K. Kirkpatrick: One final technical question. You had mentioned, when you were talking about the complaints coming in, something about a workplace policy complaint. I wasn’t sure, in terms of a police complaint….

[9:50 a.m.]

Is that something that would be internal to a force, where there may be an employee who has a concern or a complaint about that, or did I misunderstand what you had said?

C. Pecknold: No. It could arise in the context of the employment. Depending on the nature of it, it could be dealt with either as an internal discipline matter by the department itself or, depending on the level of severity, it could amount to what is called a public trust complaint, which would require a full investigation under our oversight.

I should emphasize that when internal discipline matters occur within police agencies, they still fully investigate them. It’s just a different pathway.

K. Kirkpatrick: Thank you, Commissioner. I appreciate your time.

H. Sandhu: A great presentation. I just have a quick question.

Under division 6, you mention the PCC’s involvement being very minimal or limited. Can you please further elaborate? How does that look, and is there a reason for having no involvement or less or more in the investigation process?

C. Pecknold: I’ll let the deputy start with that. Then I might have some comments.

A. Spindler: Certainly. In terms of our role and involvement in internal matters, these are typically matters that result within the workplace between police officers.

According to the statute, what ends up happening is that the police agency will investigate these matters internally. Once they’re done the investigation, they are then required to inform the OPCC of the outcome and of any disciplinary or corrective measures that have been taken in relation to that officer’s conduct within the workplace.

Now, there may be cases that may cross over or may be in the public interest where there is a public trust investigation. The OPCC plays a much more active role in actively overseeing that investigation.

What we see, practically speaking, is that agencies will reach out to our office in the first instance. They will advise us of an incident, and the commissioner will make a decision. Do we need to have a public trust investigation where the OPCC is much more involved, or is this something that can be handled internally by the police agency and they let us know when their investigation is concluded?

The level of involvement of the OPCC is in relation to the oversight of that investigation.

H. Sandhu: Thank you.

R. Singh: So good to see you, Mr. Pecknold. We meet again.

I just want to follow up on what MLA Davies was talking about. It was the complaints based on racism.

We all know — and we have heard it — that the racism people are experiencing is not individual acts. Mostly, it is a systemic issue. That has come out in a number of reports. We have heard the RCMP commissioner admitting to the systemic discrimination.

What do you think is the gap? How would you…? It is not something that you are able to identify. What would you say? What would you recommend on how we can find out more about it?

C. Pecknold: Just to be clear, in terms of my answers to the prior questions, that was with respect to what might be described as, for the most part, allegations of direct aspects of racism such as comments or other overt acts. With respect to systemic racism and, for clarity…. I listened carefully to the Ministry of Public Safety and their definition they gave yesterday, and I would adopt that definition.

We have a small subset of data. As I said, we deal with matters that come to our attention from complainants or matters that come from police agencies that are identified to us. We don’t have a broad systemic mandate. So I’m not able to make broad extrapolations.

[9:55 a.m.]

However, I agree. We’ve heard from police leaders. There’s ample evidence that systemic racism exists across our institutions, including across the public safety sector, that we have to address.

I think the gap would be that that’s been identified by your other presenters — the need for data, the need for us to, for example, be able to, in a safe, contextualized way, dig into our data, analyze those matters that have occurred that might be contributing to underlying systemic discrimination or racism and contribute to the broader conversation.

I know you’ll be hearing from the Human Rights Commissioner, who has a broader systemic mandate, but I would like to be clear that we should be part of that conversation as a collective.

R. Singh: Thank you so much. I have just one more question.

We are hearing about a lot of complaints, and a lot of times when the police are called, it is with mental health issues. The complaints that you are looking at — does that component come into…? Is that something of a theme that is coming along? Because we have heard a lot about: they are dealing with it, are not equipped to deal with it, more training or putting more resources or having more community services, partnerships there. Is that also something that you are seeing, Commissioner?

C. Pecknold: Just for clarity, as I understand it. Are we seeing interactions between the police and the public relating to mental health that are coming to our attention?

Yes, absolutely we are. In fact, of course, our complainants sometimes are suffering from vulnerabilities such as mental health or addictions, and we have to work with them or support agencies to navigate so they have access to our processes. Without a doubt, all of the various social concerns — whether it’s mental health, addiction, homelessness — that the police face will come across our desk with respect to the interactions of the public.

I think it’s fair to emphasize, though, that as I’ve said, we see a small subset. We don’t see the many examples where matters have gone well, where they’ve been properly de-escalated, where the police have done what their job is to do — to protect the public and restore the peace. What we deal with is where there’s been a concern raised.

I think, in fairness and balance, it’s important to remember that that’s what we talk about — that small look at what we do. It doesn’t mean there aren’t things that don’t come to our attention that should — absolutely. But I think it’s fair and appropriate that we indicate that there is a broad range of activity that happens that never crosses our desk.

R. Singh: Thank you so much.

R. Glumac: What do you see as the biggest challenge facing police oversight in the province?

C. Pecknold: That’s a good question. If I define oversight as I did in my opening remarks, it’s not just restricted to what we do. It includes the independent investigations office, and it includes police boards and regulatory structures.

I heard yesterday the words “transformative change.” In my opinion, there is an opportunity to broadly improve and support — and I emphasize support — governance of policing in the province through police boards or police committees, or however they structure that, and to allow those oversight and governing agencies to have the appropriate resources they need to prevent things.

The overall goal, in my view…. I have heard the discussion around the single statute. That’s interesting — a single oversight statute. I would suggest that the overall goal should be restoring and continuing public confidence and restoring relationships and preventing serious incidents that come to the attention of the public and that are of concern.

R. Glumac: When you say a single oversight statute, you mean so that instead of having a two-tiered system with police and RCMP, it would be one system. Is that what you mean?

C. Pecknold: I’m going on what I heard from the Ministry of Public Safety. I’m not sure what their intent is.

Commissioner Oppal, in the Missing Women Inquiry report in B.C., had made a recommendation about bringing the RCMP under the oversight, as I recall, of a provincial agency. I don’t believe that that’s constitutionally possible. We certainly cooperate with the RCMP civilian review commission where we can, but they are two different processes.

[10:00 a.m.]

R. Glumac: Yeah. Are you familiar with the report that came out? I’m sure you are. An Exploratory Study on Police Oversight in British Columbia: The Dynamics of Account­ability for RCMP and Municipal Police. Are you familiar with that?

C. Pecknold: No. I don’t think I am.

R. Glumac: This came out in March 2020.

One of the things that it does say in there…. I read through some of this. It said that 69 percent of the people interviewed for this report identified the two-tier police complaint system that exists between RCMP and municipal police as one of the greatest challenges facing police oversight. I’d appreciate your comments on that.

Looking through other aspects of the report, there’s one question I had in here about the timeliness of resolving complaints. They talk about, in here, several cases where they might have something even on video, and it’s very clear what happened, but several of the interviewees say…. It took four years to resolve a case in which there was a one-day suspension, for example. A police officer was forcefully shoving a disabled woman.

Do you know how it could happen that something could take four years, when it’s on video, to resolve?

C. Pecknold: It is somewhat fact-specific.

The first comment I’d make is that video is one piece of evidence. Investigations, whether they’re conducted by the IIO or by others, canvass every piece of evidence in order to make a determination of what happened.

Having said that, there are a number of procedures and pathways that will occur during an investigation. As was previously noted, there may be concurrent criminal investigations, in which case the misconduct investigation — the related investigation, the discipline investigation — would be suspended during that period of time. So there may be a lengthy period of time where there is no discipline investigation underway because there’s either a criminal investigation or a criminal prosecution.

Additionally, there are situations where the parties may apply to the courts for a judicial review of decisions. Any processes under our act would be suspended while that matter made its way through the court system. I don’t think I need to mention that sometimes the court system takes a long time to address things.

There are cases where matters have to wind their way through both criminal investigations and the court processes before we have the authority to continue on. That is a matter of simple fact and, in some ways, is very much unfortunate. It’s also demonstrative of the fact that people have a right to access to the courts.

R. Glumac: My last question. Thank you, Chair, for letting me ask a few questions here.

On that topic, in the report, it does say the majority of the people interviewed said there were concerns around the length of time it took to formally resolve complaints. Just on that, what would you say would be the one thing…? If you had one thing we could do to make this process faster, what would that be?

C. Pecknold: Well, it would be the one that I identified to you at the end of my discussion. It was identified that the special committee take a good long look through the Police Act and look at the timelines for efficiency, look at the language and improve the procedural efficiency within the act.

Where there’s confusion, I think conflict and disagreement can arise that can contribute to a lack of a timeliness.

R. Glumac: Thank you.

G. Begg: Thanks for the presentation.

Just, perhaps, to follow up a bit on what MLA Glumac was talking about. I think I heard you say that there is a time limit of six months on the investigation. Did I not?

C. Pecknold: That’s correct. There are six months with the ability to extend, authorized extensions on the investigation itself. As you may know, MLA Begg, then there are further proceedings that happen outside of the investigation.

[10:05 a.m.]

The last audit that was conducted in 2019 found that all of the matters that were in our purview were completed within authorized extensions. I believe the figure is something like 65 percent were within the six months. Of course, that doesn’t account for all the processes that occur after the investigation.

G. Begg: To be clear, the time limit is on the investigatory process, not on the completion of the entire issue. I think, and I’m not speaking for MLA Glumac, that there perhaps is an opportunity — and I thought I might hear you say this — to streamline the processes, generally, so that this can be accomplished in a shorter period of time.

I say that in a very general sense as well. We’re looking at reforming the Police Act by itself, but there are so many other agencies, including the courts, and other issues that constrain the timeliness of anything that we do. That’s one of the glaring issues I think we have to confront.

I’m interested in your comments on the need to streamline the process, specifically from your point of view.

C. Pecknold: Well, I certainly would agree that it’s an area to which attention should be paid. The balance, of course, is procedural fairness. Officers and complainants are entitled to a substantial amount of procedural fairness, a right to be heard, the right to have matters properly adjudicated before an independent decision-maker.

I would not want to see either any access of complainants or the rights of police officers be somewhat diminished through changes to that process. But I certainly would agree that anywhere within the bounds of what would be appropriate, ensuring balance and fairness, there would be an opportunity to streamline processes.

I do think there is an opportunity, as the special committee recommended, to think about matters that are less serious and more opportunity to deal with them more informally and more promptly in the front end of things. So there’s an opportunity to think about that as well.

G. Begg: I think 46 percent of the allegations of police misconduct relate to police powers — i.e., arrest and detention, use of force and searches. That, to me — and I’m sort of painting a broad stroke here — would indicate that there must be some misunderstanding on the part of the police about their powers of arrest, their powers of search and seizure, their powers of detention and, I guess, in a bigger sense, something that the commissioner alluded to, a lack of training.

Do you see that, generally? Or is it perhaps convenient for someone, some police person, to blame their lack of training for whatever breach is being investigated?

C. Pecknold: I was asked by one of the chiefs of police about trends. Of course, I gave the appropriate caution that we were dealing with a small subset of matters. But anywhere that, in my view, you can improve training with respect to officers understanding their authorities, which are highly complex, as you well know, I think you have a return benefit of preventing misconduct.

There are occasions when officers are under an honest but mistaken belief that they have the authority to do something. And as you well know, the law and the criminal law is highly complex, and this is an area that probably can have a high return on investment, investing heavily in training with respect to police authorities and arrests.

G. Begg: Thanks for that. One more question, harkening back to MLA Glumac’s thing. If we could do one thing to improve the process, to help you do your job better, which is what we’re all interested in when we deal with the reformation of the Police Act, what is the one thing that you think would reap great benefit to you and to us and to the citizens?

[10:10 a.m.]

C. Pecknold: I think reducing complexity and improving the opportunity for better outcomes, either whether that’s through complaint resolution or more timely outcomes for complainants and police officers, would be highly beneficial.

As I said in my opening, if you look across the Police Act, which you are now looking at reforming, and you look at the number of sections that are devoted to all of the procedural aspects of what we do — and that we have ten years of experience, including considerable review by the courts — there is an opportunity to look across that and work towards the best possible outcomes for complainants, for persons who are experiencing vulnerabilities in their lives, who come in contact with the police, and for police officers themselves.

We have to recognize that when matters come to our attention, often complainants are in crisis. We should be looking for ways, I think, in a restorative way, to address those matters to re-establish the relationships between the police and the individual.

A. Olsen: Thank you, Commissioner Pecknold, for your presentation.

I have nothing really to add to the questions, other than the fact that…. I’m just wanting to ensure that it’s not lost on us, as a committee, that there was a very comprehensive process that was undertaken — a series of recommendations that were made by an all-party committee. That process…. I was a part of that process. Much like this committee, it was a good process, chaired by one of our members here.

I just wanted to draw attention to that, because it’s not very often that you get to a situation where we have gone through the process to review the police complaints process and have the act open in front of us now to make the changes that the recommendations were made. I’m on another all-party committee. We’re going to make a series of recommendations, and then we’re going to have to open the act. Well, right now, we’ve got this act open.

I think that it’s important that we take those recommendations and we honour the process that happened previously by bringing those recommendations forward and very seriously considering them in the recommendations that we make here. We can’t make the changes to the act, but we can further reinforce the good work that was chaired by Rachna and the members and the recommendations that came forward. I just want to make sure that we put strong emphasis on that opportunity that we have right now.

D. Davies (Deputy Chair): I just want to clarify. I’m just kind of going through here. I know that you have no oversight with the RCMP, and we talked police. Does that extend into peace officers, just for clarification? Do you investigate the B.C. CO service, sheriffs and such, or strictly the municipal police forces?

C. Pecknold: Thank you for the question.

Strictly the municipal police forces and those units that are…. For example, the Transit Police, which is, I believe, a designated policing unit; the self-governing First Nations police organizations, the Stl’atl’imx police service; and components of the Organized Crime Agency, if they’re provincially appointed. We do not oversee sheriff officers or others appointed under the act or special provincial constables. Our jurisdiction is limited to that. We do oversee special municipal constables, but they are appointed by municipal police boards.

D. Routley (Chair): Thank you, Mr. Pecknold. I would ask one question related to persons with disabilities — how the office deals with providing services. If those disabilities require advocacy, what sort of relationship does the office maintain with advocates for persons with disabilities?

C. Pecknold: Perhaps the deputy commissioner could talk a little bit about our support agencies and outreach.

[10:15 a.m.]

A. Spindler: In terms of services, we have a number of support agencies that we’ve built relationships with over the years. If someone were to come to our office indicating that they would need to have some added assistance, then that is something that our office would facilitate — connecting that person with an appropriate support agency to assist them in all aspects of the complaints process, in terms of assisting them in filing their complaint and assisting an understanding of the process. They may be there as a support role, say, during an interview with an investi­gator.

We do have a number of agencies. We have a specific outreach liaison who has those relationships and will be able to connect with that particular person, get an understanding of their needs and then be able to appropriately set them up with a support agency that would then provide them with that assistance.

C. Pecknold: If I may just add, in fairness to the support agencies, what we hear from them, at times, is that they are not necessarily directly funded to work on support for our agency. I believe, consistent with MLA Olsen’s comments, that that was also part of what the special committee looked at previously. We do hear from those agencies that they are not specifically funded for that, so that’s an area for examination.

D. Routley (Chair): Is a person able to simply name an advocate and have that advocate participate with them? Is there any special qualification that would be required?

A. Spindler: Well, the act contemplates a person having a representative act on their behalf. So there is a statute that would support it. Then, also, if someone is looking to have an advocate, that is something that the complaints system certainly contemplates.

D. Routley (Chair): Thank you very much. We went over time because this really was a fascinating presentation and the answers have been really fulsome and very helpful to us. We, as a committee, have undertaken what we consider to be really important work that can positively impact many people’s lives. We thank you for your help in doing that.

We also would invite you to contribute any other information you might think is relevant to us. Also, we would respectfully ask that we be able to call upon you for further information or clarification if we need that.

C. Pecknold: Yes, of course. We’re at your disposal.

D. Routley (Chair): Thank you very much. It was good to see you again, Mr. Pecknold. Thank you for the presentation.

Thank you, Members. We went over time. Perhaps we could just go straight into the next presenters. Is everybody all right with that? No opposition to that? Okay.

All right, Members. We are welcoming guests from the human rights commission office.

We’re thankful to have you visit us. I’d like you to introduce yourselves. I’m sorry that we’ve gone a bit over time with our previous presenters. We’re definitely interested in hearing from you. Please go ahead and make whatever introductions you think we should hear.

OFFICE OF THE
HUMAN RIGHTS COMMISSIONER

K. Govender: Thank you, Chair.

Good morning, everyone. I’m Kasari Govender. I’m B.C.’s Human Rights Commissioner. I’m pleased to be here with you today to speak to you about the role of systemic racism in policing and hopefully contribute to the important work that you’re doing here today.

I am joined by my colleagues here today: Sarah Khan, who’s our general counsel, and Heather Hoiness, who is our staff lawyer.

All three of us are joining you from the traditional and unceded territories of the Coast Salish peoples, including the Musqueam, Squamish and Tsleil-Waututh peoples.

I want to spend my time with you this morning addressing what I mean when I talk about systemic racism so that, hopefully, we will all be on the same page — how we know that systemic racism exists within our policing system and some initial recommendations for addressing these problems.

[10:20 a.m.]

We’ve had the opportunity to conduct some consultations with community organizations, and we intend to provide more extensive written submissions at a later date, so I hope you will take these as our preliminary comments at this point.

Before I dive into what I mean by systemic racism, I want to spend a few minutes telling you about my role and my office. As Human Rights Commissioner, my office works to address inequality, discrimination and injustice in the province by shifting laws, policies, practices and cultures. We do this work through education, through research, through advocating for legal and policy change, through conducting public inquires and interventions before the tribunal and before courts and through monitoring human rights developments in government and other sectors.

As an independent officer of the Legislature, I am tasked with monitoring and acting as a watchdog for human rights in the province. I was appointed in September 2019 as B.C.’s first fully independent Human Rights Commissioner. My office is distinct from the Human Rights Tribunal, which hears and decides complaints brought under the human rights code much like a court would. My job is distinct from this role because I am charged with addressing systemic concerns.

By systemic concerns, I mean human rights issues that don’t just impact one individual but really are about bigger systems, like public policies, institutional practices or cultural norms that act to perpetuate human rights abuses. I’m charged with examining the underlying causes of discrimination rather than the individual manifestations of it.

As I mentioned, I want to spend some time today digging into what I mean by systemic racism. That’s a term that’s been used a lot lately and one that is specifically named in the terms of reference for this committee.

When most of us think about racism, I think we think about using racial slurs or refusing to hire someone because they wear a hijab or someone being attacked because of their place of origin or a swastika being painted on the side of a public space. Those are all examples of interpersonal racism.

The stories of interpersonal racism in the context of policing in B.C. include a Heiltsuk grandfather and his 12-year-old granddaughter who say they were racially profiled after being detained by police, handcuffed on a downtown Vancouver street after trying to open a bank account.

As important as examples like these are, it only tells part of the story about racism and its impacts here in B.C. because incidents like these are supported by and allowed for by a system of cultural attitudes, practices, institutions and laws. Racism is not necessarily the product of overt actions between individuals. It does not require hatred or even explicit discrimination. Sometimes even when people are well-intentioned, the laws and structures of our society produce consistently discriminatory outcomes for Indigenous and racialized people.

There’s a significant case from the Human Rights Tribunal that I want to draw your attention to. The case is called Radek v. Henderson Development (Canada) and Securiguard Services. It’s a case from 2005. The B.C. Human Rights Tribunal adopted in that case a definition of systemic racism that I think is important for our purposes.

This is a quote from the decision.

“Discrimination…means practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of an attributed rather than actual characteristic…. It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone’s potential or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.”

The issue before this committee is not whether there are a few bad apples or even many bad apples who work as police officers in B.C., although of course racist behaviour of individual officers can be evidence of a larger, systemic problem of racism in the institutional culture.

[10:25 a.m.]

The issue before this committee is whether practices or attitudes within B.C.’s police forces have, to use the words of the Radek case, “whether by design or impact,” the effect of violating human rights, including by disproportionately over-policing certain communities, resulting in disproportionate use of force by police on certain populations. The task of this committee, of course, is to figure out what to do about that. There are a number of factors that can contribute to systemic racism, including implicit bias, structural design, misunderstandings across cultures, and the failure to address historic wrongs.

To make this more real, I want to provide some examples. In regard to implicit bias, the Ontario Human Rights Commission recently found that Black people are grossly overrepresented in discretionary, lower-level charges and are more likely than white people to face low-level charges with a low probability of conviction.

For example, despite making up only 8.8 percent of Toronto’s population, Black people represented 35.2 percent of people involved in out-of-sight driving charges, such as driving with invalid insurance. These are the kinds of charges that only arise after a stop has already taken place, suggesting other motives for the stop such as implicit bias. This is when someone is pulled over, a licence is checked — there’s no reason to do that — and, once they check, they discover that there’s some other offence going on.

Structural design is another factor that can contribute to systemic racism. Policy and procedures can be overtly designed in a discriminatory way, or they can have that effect by implication. An example of this is that, in Surrey, there was a program that partnered police and school staff to identify students at risk of gang activity. This program examined factors such as whether the student’s peer group was unilingual or multilingual and whether “they were hanging out with the wrong crowd.” Using that kind of information to train algorithms or input data to generate forecasts about people that police may act on builds in problematic bias to the very structure of that technology.

Cultural misunderstandings or disconnects can arise in many contexts as well, including policing. An example of this issue arose in an Alberta Queen’s Bench case in 2018. The judge in that case was sentencing an Indigenous offender and said: “She is in a system which is imposed upon Aboriginal people, and I use that word deliberately. Our history, in relation to Aboriginal people, is one of deliberate destruction. We have systematically destroyed their culture, their way of living. We have done everything we can to take from them their sense of spirituality and identity.”

Finally, as described, the failure to adequately address historic wrongs can mean that systemic racism of the past continues to influence current structures. In their presentation to the Special Committee to Review the Police Complaint Process, the First Nations Leadership Council noted that historically police and law enforcement have played a role in perpetuating cultural genocide against Indigenous peoples. “Over-enforcement and police brutality towards Indigenous people remain major concerns, and systemic bias and the power imbalance between police and Indigenous peoples is,” in the words of FNLC, “deeply entrenched and undeniable.”

With this understanding of systemic racism, I turn now to what we know about the form of discrimination in the context of policing in B.C. In August 2020, the Ontario Human Rights Commission released their report called A Disparate Impact, which was its second interim report in its inquiry into racial profiling and racial discrimination against Black people by the Toronto police service.

Upon releasing that report, chief commissioner Ena Chadha said: “The time for debate about whether systemic racism or anti-Black racism exists is over. The time has come for us to work together to change law enforcement institutions and systems that produce such disproportionate outcomes. Community trust and safety, especially the safety of Black lives, depends upon it.” I agree with commissioner Chadha, and I want to stress that this is equally true for Indigenous lives in B.C.

[10:30 a.m.]

We know from the Ontario Human Rights Commission’s work on the Toronto police service inquiry that systemic racism is evident in the areas of street checks, use of force, proactive policing and arrests. Black people are significantly overrepresented in all use-of-force cases involving the Toronto police. For example, Black people were significantly overrepresented in investigations of serious injury or death or allegations of sexual assault by police, relative to their representation in the general population.

Indeed, between 2013 and 2017, a Black person in Toronto was nearly 20 times more likely than a white person to be involved in a fatal shooting by the Toronto police service. Perhaps most shocking to non-Black Canadians, we also know, from the Ontario Human Rights Commission’s work, that the likelihood of a Black person being shot by police in Toronto is just as high as for a Black person in the average city in the United States.

The significant overrepresentation of Black people in these investigations, as well as their gross overrepresentation in lower-level use-of-force incidents, cannot be explained by factors such as the patrol zones in low-crime and high-crime neighbourhoods, violent-crime rates and/or average income. The overrepresentation remained constant and significant even after controlling for these factors, suggesting that race was a much stronger predictor of police use of force.

Systemic racism in policing is not only an American problem, as some have suggested; nor is racial profiling only an Ontario problem. For example, we know from a 2019 inquiry done by the Nova Scotia Human Rights Commission that within the Halifax region, Black people are grossly overrepresented in police street-check statistics. Although overall street-check numbers have declined significantly in recent years, racial disparities have not diminished.

Expert evidence produced for the Human Rights Commission in that province found that racial disparities cannot be explained by group-related age differences, criminal history or residential location. In fact, the Black street-check rate is higher in predominantly white communities than in communities with relatively high Black populations.

Finally, analysis reveals very little evidence to support the arguments that street checks lower crime. If anything, in Halifax, at the aggregate level of analysis, increased street-check activity is related to small but statistically significant increases in both crime counts and crime severity.

A 2018 review of the research literature regarding street checks, racial profiling and police-community relations concluded that the same constellation of results emerges in Canadian, American and British research. Regardless of the research methodology used, studies consistently find that Black and other racialized people are more likely to be stopped, questioned and searched by the police than are white people, even after other factors are accounted for. We know that these problems exist in B.C.’s police forces as well.

Although we don’t have the benefit of the results of a large-scale inquiry like the Ontario Human Rights Commission has conducted, in my view, there is ample evidence — from the research, from the Human Rights Tribunal complaints and from affected communities themselves — to say that substantially the same problems exist with systemic racism in our province.

For example, in 2013, the international Human Rights Watch organization documented extensive reports of physical and sexual abuse of Indigenous women and girls by police officers in northern B.C. going back decades. Given police powers and the fear of retaliation against Indigenous women and girls, these cases are likely underreported.

The CBC maintains what they call their deadly force database, which shows that Indigenous and Black people continue to be overrepresented in police-involved deaths in B.C., as you also heard, of course, from chief coroner Lisa Lapointe on Monday. According to CBC’s research, B.C. has the highest rate of police-involved deaths in the country.

In addition, there’s the Human Rights Tribunal decision of Campbell v. Vancouver Police Board, a 2019 decision. In that case, Ms. Campbell, an Indigenous woman and mother, was found to have been discriminated against by the Vancouver police department on the basis of her race. Amongst other things, the tribunal wrote: “The actions of the police towards Ms. Campbell had the effect of perpetuating historical disadvantage against her as an Indigenous person.”

The tribunal wrote, “The officers who dealt with her that night were not equipped to understand her unique needs and circumstances as an Indigenous mother,” including the historic abuses of Indigenous people by the police and other government agencies. The tribunal said: “They” — “they” meaning the police — “drew on subconscious stereotypes to assess her as suspicious, possibly criminal and a threat to their mission. Their reaction to her was disproportionate and made things worse.”

[10:35 a.m.]

This case illustrates many of the elements that I referred to earlier in defining systemic racism — that is, unconscious bias, cultural disconnect and a failure to recognize the historical context of the relationship between Indigenous people and police, despite some efforts by VPD to address these issues.

As the tribunal is empowered to do in appropriate cases, it ordered systemic as well as individual remedies in this case. The systemic remedies speak to the systemic nature of the issues. That included a call for additional training.

We must resist any suggestion that race does not play a role, in some cases a central role, in the adverse outcomes experienced by racialized groups, particularly Indigenous and Black people, who interact with the police. If Indigenous and racialized populations are systematically stopped and searched more frequently by the police than white people, they are also more likely to be detected and arrested for illegal activity than white people who engage in exactly the same criminal behaviour.

Thus racial differences in police stop-and-search activities may directly and significantly contribute to the overrepresentation of certain racial groups — Black and Indigenous people, in particular — within the Canadian criminal justice system. The preponderance of evidence is clear that race is statistically significant in policing, even when other legally relevant factors are controlled for.

I’m going to turn to recommendations. As I say, we will be providing more detail on these in some written submissions. I just want to focus on a few recommendations to you today.

First, I recommend enhancing accountability mechanisms, something I know that the committee has shown a great deal of interest and concern over, over this week of presentations. I want to add something new to that conversation, which concerns the human rights code.

Our recommendation is to add Indigenous identity as a protected ground under B.C.’s human rights code. Of course, while I appreciate that this review is most directly aimed at the Police Act, I think your terms of reference are obviously very broad and I think allow for this kind of recommendation as well.

This amendment is relevant to policing because, as I’ve described, Indigenous people are overpoliced and disproportionately subjected to overuse of force by police. Adding Indigenous identity would provide another mechanism for access to justice for Indigenous people in dealing with the police and would further compliance with the Declaration on the Rights of Indigenous Peoples Act. This call has been echoed by a number of Indigenous leaders as well as B.C.’s Human Rights Tribunal.

I’d also recommend adding social condition as a protected ground under the human rights code. During our engagements with community, we heard repeated concerns about police interactions with British Columbians who are living in poverty and how poverty is criminalized. Of course, people living in poverty are disproportionately Indigenous, disproportionately have disabilities and disproportionately have mental illnesses, in particular.

Adding social condition to the code would, again, provide another accountability mechanism for those who believe they’ve been discriminated against by the police because they are living in poverty, including those who are homeless.

My second recommendation to you today is that the Police Act be amended to require all police forces in B.C. to collect, disclose and analyze race-based and other disaggregated demographic data across the full spectrum of police services for the express purpose of eliminating systemic racism in policing. I know you’ve heard some version of this recommendation from many people who have appeared before you. I’d be happy to speak more about this, as well, if you have any questions for me.

In our recommendation, this would be an amendment to the Police Act as well as provide some details in a provincial policing standard. The data will assist in preventing and monitoring systemic discrimination as well as providing much-needed transparency for the system. The recommendation that I’m making flows from a report I issued last fall entitled Disaggregated Demographic Data Collection in British Columbia: The Grandmother Perspective.

As I and many others have cautioned, however, the process of collecting disaggregated data based on race and other demographic characteristics must happen in consultations with the communities most affected by these statistics. I recommend the appointment of an interim community governance board to ensure that the process is guided by those most impacted, without causing further delay in the process.

[10:40 a.m.]

The third recommendation is that this committee consider what truly makes communities safe and to what extent the police need to be involved to achieve community safety. I recommend that police should be de-tasked where possible and, critically, that the funding that would otherwise go to policing be put towards infrastructure and services that create safer communities — to, for example, affordable housing with appropriate supports for those British Columbians with mental health problems, addictions or other needs that make them vulnerable.

Finally, turning to street checks. A street check occurs when identifying information is obtained by a police officer concerning an individual outside of a police station that is not involved in an investigation. Street checks can and do result in harm to Indigenous, Black and low-income individuals in communities. Street checks contribute to the over-policing and disproportionate criminalization of these groups. They are not merely an inconvenience. Street checks take a toll on a person’s physical and mental health and can impact their ability to pursue employment and educational opportunities.

In October 2019, Nova Scotia’s Minister of Justice issued a provincewide moratorium on street checks. He did so specifically because of the discriminatory impact street checks had on Black Nova Scotians, and he did so after receiving an opinion on their legality from the former Chief Justice of Nova Scotia.

We know that street checks are problematic and that they can result in psychological detention, as found by the Supreme Court of Canada in R. v Le. We know that street checks are problematic for certain communities in particular. We will provide more detailed recommendations, on how to prevent arbitrary and discriminatory police stops, in my upcoming written submissions to you.

Thank you, again, for the opportunity to speak with you today to engage in this important conversation. I am, of course, happy to answer any questions that you may have.

D. Routley (Chair): Thank you, Commissioner.

Members, I’m entertaining questions.

K. Kirkpatrick: Thank you very much, Commissioner. It was interesting and eye-opening. I don’t really have a question. What I have to add — I’ll try to be succinct here — is an example from an experience I’ve had in terms of systemic racism and a system that is designed in a way that doesn’t appreciate culture.

I used to run a social services organization — this is in no way critical of MCFD; it’s systemic and long term in terms of how they would deal with things — and we would be tasked with providing direct service hours in terms of supporting families across the Lower Mainland. When we were dealing with Indigenous families, it would take so much longer to be able to build trust for them to be able to come and share their stories and information with us, because they identified our provision of services as being part of government.

There is this disconnect between this very quantitative way that government may measure success in supporting people in the community without taking into consideration that so much more needs to go into supporting those Indigenous families so that we can build trust. We can even change the way that we appear on the face of things in terms of being able to interact.

Anyway, that was just an example of things I wasn’t aware of until I was in the system and starting to realize that direct service hours are not applicable when you’re dealing with cultural differences and understanding. Thank you for the work that you do. I appreciate it.

A. Olsen: Thank you, Commissioner. I just really appreciate, I think, the clear definition. I think it helps provide some context. I know that when this committee was originally struck, back in the summer, there were some hands in the air saying: “Well, what is it? What is the definition? What is systemic racism? What is institutionalized discrimination and bias?”

I think a part of those comments were inspired by the hope that if we can’t pin it down, if we can’t identify it and clearly articulate it, then it must not exist. I think that what you’ve done here today has provided us with some very important context to the conversation that we’re having.

[10:45 a.m.]

I think it’s important to recognize that this entire province, this country, was established on these principles. It was established on the values of having some in our society benefit and others in our society deliberately kept out from those benefits. I think that when we’re able to acknowledge that as the reality of the establishment of this province, then we recognize that the scope of the challenge we have in front of us is in every single block of this institution.

I really appreciate the context that you’ve provided. I have no questions for you. I look forward to your written presentation. Thank you for the contribution that you’ve made today.

K. Govender: Thank you. If I could just take a moment to respond. I appreciate that neither of those was a question, but I think they do point to important elements of what we mean by systemic racism — both that it’s hard to understand it until you’ve seen it, and then, MLA Olsen, your comment that if we can’t define it, maybe it doesn’t exist.

I think that’s partly the power of race-based and other disaggregated data. It moves us past…. I think defining is important, and then it moves us into real data and ensures that the decisions we’re making on these important social issues are evidence-based. When you pull out that data, when you realize statistics like a Black person is 20 times more likely to be fatally shot in Toronto than a white person, it’s hard to resist any suggestion that policy needs to change or that practice needs to change. That very much underscores the suggestion that many have made before you, around the collection of data.

R. Singh: So good to see you here, Commissioner, and hear all your powerful words. I just want to reiterate what MLA Olsen said. Also, how happy we are that, after so many years of not having a Human Rights Commissioner in British Columbia, we have one now. The important work that your organization is doing, that you are doing — we really appreciate that.

The comments that you have made in front of the committee today are, as I said, extremely powerful and will guide us when we talk to the stakeholders. We are really looking forward to your return submission as well. Thank you so much.

D. Routley (Chair): I would ask, Commissioner, when it comes to persons living with disabilities, if you could elaborate on how you help them access and how you work with those who require advocates — how you identify who can act on behalf of a person, that sort of thing.

K. Govender: Sure. Our role is not generally to work directly with people in the community in a service provision–type of role.

There are three parts to the human rights system. One is the Human Rights Tribunal, which acts much as a quasi-court would, to adjudicate individual complaints around racism — for example, the Háiɫzaqv grandfather and his granddaughter complaining about the racism that they allege they’ve experienced at the hands of police. That is now being heard in the context, or going through the process, of the tribunal.

There are services that provide support to people going through the tribunal process — services like the human rights clinic, which is run through Community Legal Assistance Society in B.C. It’s an organization in B.C., and they’re funded to provide that kind of legal support, along with a number of other organizations that provide varying levels of legal support.

That also applies…. The example I gave was a claim around racism, but it definitely applies, very much so, for people with disabilities who are talking about discrimination they’ve faced, as well. Obviously, they can experience racism, but also claims around discrimination on the basis of disability. In fact, claims on the basis of disability form the largest single source of complaints before the Human Rights Tribunal, so it’s an important question for that purpose. It is a significant issue in the province — discrimination against people with disabilities.

The more precise question you’ve asked about access to services…. Again, that’s not a service that we, at our office, provide. We work on systemic issues, and we are working on a number of systemic issues around people with disabilities and the human rights issues impacting them.

[10:50 a.m.]

D. Routley (Chair): I understand. Thank you.

When it comes to immediate access to you and to the office, how you communicate with people who have various disabilities, how do you identify people you can represent, and how do you deal with encouraging people in that situation to access your office, particularly as it relates to their experience with police?

K. Govender: Well, we don’t necessarily encourage people, in the sense that we’re not able to provide them with any direct service. That said, we do hear from many people every week, British Columbians across the prov­ince, and that includes issues on policing, but it includes human rights issues across the board.

We have staff that are trained to provide trauma-informed services and referrals but also legal information. One of the key services that we provide British Columbians is public legal information. For example, what does the human rights code say? What does it mean for your life? That could have a direct impact in relation to policing, as I’ve noted, because the human rights code is one mechanism to access justice on complaints around discrimination and policing, and it is the mechanism for discrimination more generally.

I do want to echo support for the 2019 OPCC recommendations to increase supports for people in filing complaints with police. I think it’s an important access to justice consideration across the board on policing, on all the different mechanisms to file complaints — again, including the Human Rights Tribunal but, of course, including the more police-specific complaint mechanisms that you’ve heard about in much detail this morning. That important piece of the puzzle is to ensure that there are publicly funded services to support people, particularly people with disabilities, to file those complaints.

K. Kirkpatrick: This is a question. In thinking about this…. I mean, I know that there is no organization that is not a victim to systemic racism. There is nobody who can say that their organization is perfect and that they do everything the right way. Most organizations want to do it the right way and want to be aware of this. I know this isn’t your role. But are there resources available or a recommendation you can make for a kind of systemic racism audit for organizations?

We’re talking about systemic racism as this very big thing, and the kinds of issues that you deal with are societal. That’s not really the right word. I’m talking about how an organization recruits, the kinds of benefits that they offer, the layout of their office. I mean, there are so many things that impact supporting different cultures and, in particular, Indigenous People. Very, very difficult for organizations to recruit.

How does one go about, in an organization, identifying what those things are, and where can we find recommendations to make them better? I don’t know if it’s a question for you. But are there resources or places that we can go?

K. Govender: Certainly on the employment side, it’s a priority of my office that we’ve identified — to do some work around employment equity and providing the kinds of best practices that you’re talking about, actually.

It will be a priority in the next year or so to produce a best practices document to provide exactly that kind of resource, both from the initial stages of recruitment all the way through someone’s tenure as an employee. It will certainly have impacts in every sector, including policing, which will, of course, have an impact both for those who are staff and members of a police force but also for those who are being policed, for all of us as citizens, because we need to see ourselves reflected in the police as well.

There is an example of good practices, and I’m just going to find it here. The Peel regional police have done a systems review of all directives and policies under a diversity, equity and inclusion lens. That may be an example to look towards, to a police force doing exactly the work that you’re talking about here.

[10:55 a.m.]

D. Routley (Chair): Thank you.

Members, any more questions? I don’t see any.

With that, I’ll thank the commissioner and guests for the really fascinating presentation. It’ll be very helpful in our work. We hope that we can turn to you for information or assistance, should we require that. Thank you very much.

K. Govender: Absolutely. I’m pleased to present…. Oh. I think….

D. Routley (Chair): I see a couple of hands now.

D. Davies (Deputy Chair): Just that I certainly thank you again. I just wanted to get clarification. The written submissions. Is that going to come…? When we can expect your information? There was a lot of information there to absorb. I’m a “look at the letters” kind of guy.

K. Govender: Sure. I’m happy to pass along my speaking notes to the Clerks to distribute to you so that you have that definition of “systemic racism” and the examples that we used. We can do that very quickly.

In terms of a larger set of written submissions, I can advise that we are doing some research to support that. We have done a request to every police force in the province to better understand what data they collect. Once we understand — not to give us the data itself at this point but just to understand what they collect — and get a better sense of that, that will help inform our next steps as well as our recommendations to you.

We are in process on that and are not able to give you that information right away, but we are happy to work with the Clerk’s office to make sure we can get that to you in a time frame that is helpful for your deliberations and considerations.

D. Davies (Deputy Chair): Wonderful. I appreciate that. Thank you.

A. Olsen: My apologies. As we were just about to wrap up, it dawned on me a conversation that I had with the National Association of Japanese Canadians. I know that they’ve been working with the provincial government at various levels, seeking some redress for some very egregious past wrongs.

One of the suggestions that they made…. I wanted to take the opportunity here to ask about a suggestion they made around an anti-racism working group and changes that could be made to the act for the human rights code.

Recognizing that you haven’t had any thoughts to prepare for this, but what would your thoughts be perhaps on an ongoing, established body that is looking at these issues specifically around racism and anti-racism actions that could be taken within the government — that recommendation that they made?

K. Govender: Just so that I understand, the suggestion is a within-government committee looking at anti-racism initiatives. Am I getting that right?

A. Olsen: That’s right.

K. Govender: Okay. Yes, I think cross-governmental work on racism is vital. Your question points to the significance of the distinction between what my office does and what an intergovernmental office on anti-racism could do.

I am, as we’ve said, and I’m sure you know, entirely independent from government. I report to the Legislature and not to government. That’s an important aspect of the work that we do. But that leaves this gap within government to do the kind cross-coordination and internal conversations around racism. So I am very much in support of an anti-racism secretariat or an across-whole-of-government type of approach to racism initiatives.

Since I’ve got the floor for a moment, if I could just add to the previous question about employment equity. There is also a gender equity office within government that, I understand, is able to do GBA+ training and assessment. So for what it’s worth, I’ll add that to the conversation.

D. Routley (Chair): One last call for questions. Members?

With that, I will thank you, Commissioner, and thank the guests. Very helpful.

K. Govender: Thank you for having me. I’m happy to be at your disposal if you have further questions.

D. Routley (Chair): Members, if there’s any other business we’d like to bring to the table….

If not, we could entertain adjournment, if someone would like to make that motion.

Rachna. Harwinder seconds.

Motion approved.

The committee adjourned at 11 a.m.