Ontario’s chief coroner has announced that there will be an inquest into the death of Andrew Loku, who was shot by Toronto police on July 5, 2015.
The death, a year after retired Supreme Court Justice Frank Iacobucci released his report on police handling of people in crisis as a result of mental illness, has produced widespread public reaction, intensified by the fact that many of those suffering from mental health issues killed by the police are black or of other racialized backgrounds. The coroner’s decision came after Black Lives Matter Toronto staged 300 hours of protest in front of the Toronto police headquarters and a rally at Queen’s Park.
There is a great deal of expectation the inquest will shed light on what happened in those few moments that led police to kill Loku and on what role mental illness and race may have played. Despite the fact that mental illness has characterized several serious interactions between members of the public and the police, investigating agencies have consistently failed to examine the intersection of mental health and race in deadly encounters with police.
It caused considerable surprise when Iacobucci admitted at a press conference on July 24, 2014, that he had not considered the issue in his review of the killing of Sammy Yatim because it was not part of his mandate.
Many viewed it as a significant missed opportunity.
A coroner’s inquest does not assess blame and explores past events only in order to make recommendations to avoid or reduce the likelihood of similar results in the future.
Even so, the police officers involved in Loku’s death will be obliged to give evidence. They will have to account in public for their decisions and actions, and they will no longer be able to keep their identities secret. Representatives of the police service, likewise, will have to explain publicly what they have done to improve how police deal with people in mental health crisis.
Members of the community look to the inquest for this type of accountability because the agency charged with investigating police shooting deaths, the province’s Special Investigations Unit (SIU), has historically failed to satisfy this need. The SIU absolved the officers of any wrongdoing, providing little in the way of a public explanation. It would not identify officers.
Black Lives Matter members have demanded a complete review of the SIU. Its deficiencies are well known.
In his 2008 and 2011 reports, Oversight Unseen and Oversight Undermined, former Ontario ombudsman André Marin (a former director of the unit) provided extensive documentation to show the SIU’s ineffectiveness in holding the police accountable. There is perceived to be a huge gap between the kind of independent agency the public demanded when the unit was created in 1990 and the agency it got.
It was the police killing of Lester Donaldson and Wade Lawson – both black men with mental health issues – that spurred the original demands for an independent body to investigate police. Public controversy about police in those days was focused more on race than mental health, and it was the Race Relations and Policing Task Force established by the province that recommended the creation of the SIU. Public concern about the connection between race and mental health in police shootings came in the late 1990s, with a 1999 conference, Saving Lives: Alternatives to the Use of Lethal Force, organized by anti-racism groups, mental health groups and the Toronto police.
Yet despite this context, many question whether the agency has done a satisfactory job of dealing with either issue, let alone the two in conjunction.
Even in policing circles, it’s accepted that bias, whether explicit or implicit, can affect police behaviour. In Toronto, the police service has introduced mandatory training on implicit bias as part of its work on police-community engagements. Several human rights tribunals have upheld complaints of racial discrimination against the police on the basis of unconscious bias.
The SIU’s failure to deal with the effect on police actions of ideas or attitudes about race and mental health could well be the result of the rather narrow mandate it was given to determine whether a police officer’s action in killing or seriously injuring someone merits the laying of a charge under the Criminal Code.
This is a higher bar than the one set in a human rights proceeding or civil action, because the charge must be proved beyond reasonable doubt in a criminal trial. Indirect evidence related to unconscious or implicit bias would be extremely difficult to introduce, let alone prove, in court.
It’s not surprising, then, that the SIU charges very few police officers as a result of its investigations. And once it’s made a decision, it plays no further role, even if it were to identify other disturbing issues.
Which leads people to ask whether sufficient attention was given to the circumstances that led to the creation of this agency in the first place.
Its investigations are conducted in secrecy, and unless criminal charges are laid, it submits a confidential report to the province’s attorney general. This is what happens in the vast majority of SIU investigations. In these cases, the SIU provides limited public information and does not reveal the identity of the officers involved.
In its early days, the SIU did identify officers publicly. But its first directors had to fight to assert their authority and get cooperation from police. Concessions were made around the police duty to cooperate as a result, with the consequence that the SIU today is a toothless tiger.
As part of its review of the Police Services Act, the Ontario government has promised to look at the mandates of all police oversight agencies, including the SIU.
In the meantime, the coroner’s inquest is the community’s only hope to get clear answers about the death of Andrew Loku, a black man coping with mental illness.
Alok Mukherjee is former chair of the Toronto Police Services Board.
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