Skip to main content

Police Services: Safe Access for All. A Report by the Immigration Legal Committee

Police Services: Safe Access for All
A Report by the Immigration Legal Committee

Executive Summary
(full report attached)

Introduction

The Immigration Legal Committee is a group of law students, legal professionals, and lawyers that advocate for the rights of immigrants and refugees, particularly those without status. It is a joint project of the University of Toronto Faculty of Law Immigrant Rights Working Group, No One Is Illegal (Toronto), and the Ontario Law Union.

“Don’t Ask, Don’t Tell” (“DADT”) policies are created to allow persons without immigration status to access police without the fear that they might be detained or deported for doing so. The Toronto Police Services Board (“the Board”) has previously implemented a narrow “Don’t Ask” policy, whereby police officers are not to ask victims and witnesses of crimes about their immigration status without a bona fide reason to do so. The Immigration Legal Committee created this report to provide the Board with information about the legality of adding a “Don’t Tell” component to this policy. A “Don’t Tell” component would prevent police from disclosing immigration status to federal officials, should a person’s status come to their attention. Currently, many American jurisdictions have implemented complete DADT policies.

The implementation of a complete DADT policy is vital if all Torontonians are to be able to access police without fear. A “Don’t Ask” policy alone does not allow victims and witnesses to safely access police protection unless it is combined with a “Don’t Tell” policy. This is because police officers rarely find out about victims’ and witnesses’ immigration status by asking about it directly. Rather, immigration status is usually disclosed to officers when they ask for identification, or by abusive partners who use their victim’s lack of status to keep her from seeking protection.

After reviewing U.S. DADT policies, as well as the statutory and common law relevant to the legality of implementing a DADT policy in Ontario, the Immigration Legal Committee is of the view that the law does not require police to disclose immigration status to federal officials except when they are carrying out a warrant issued under the Immigration and Refugee Protection Act (“IRPA”). In addition, it is very likely that disclosure of this information conflicts with police duties under the Police Services Act, as well as with the Victims’ Bill of Rights, the Charter of Rights and Freedoms, the Ontario Human Rights Code, and international law. Consequently, not only is there no duty to disclose, but a practice of regular disclosure of immigration status by police is likely contrary to statutory, constitutional and international law.

Based on this analysis, the Immigration Legal Committee recommends that Toronto police adopt a policy to prevent officers from disclosing immigration status, should they become aware of it.

The information in this report also affirms the importance of ensuring that the existing “Don’t Ask” policy is extended beyond victims and witnesses, to include all people police come into contact with. Community agencies have reported that racialized clients with and without immigration status are stopped by police and asked about their status. Questions about status are used by police to justify stops made primarily on the basis of race. The lack of a more inclusive “Don’t Ask” policy therefore allows police to use immigration status as a racial profiling tool. This demeans the dignity of racialized persons in Toronto and is a violation of the Ontario Human Rights Code and the Charter of Rights and Freedoms.

Consequently, the Immigration Legal Committee further recommends that the Board extend its DADT policy to other persons police come into contact with, and not restrict it to victims and witnesses.

Main Findings:

Police have no duty to report immigration status.

A practice of regular disclosure of immigration status is likely contrary to statutory, constitutional and international law.

Main Recommendations:

The Board should adopt a “Don’t Tell” policy, directing officers not to disclose immigration status.

The Board should extend its “Don’t Ask” and “Don’t Tell” policies beyond victims and witnesses of crime. The only exception to these policies should be where a police officer is carrying out a specific warrant under the Immigration and Refugee Protection Act, if directed to do so by an immigration officer.

1) A “Don’t Tell” policy is legal, and recommended, under Ontario law

The first section of the report addresses whether Ontario law prevents the implementation of a more extensive DADT policy. It asks, (a) Is there a duty under Ontario law for police to disclose immigration status to federal officials? and (b) In the absence of a duty to disclose immigration status, does Ontario law provide police officers with the discretion to do so?

We examine the duties conferred on police by the Police Services Act (“PSA”), and by the Immigration and Refugee Protection Act (“IRPA”). Our review indicates that there is no legal duty for police officers to report persons without immigration status to federal officials. While the PSA states that police must “prevent crimes and other offences” and assist others in “preventing crimes and other offences”, the term “offences” does not include violations of the IRPA. Rather, it refers only to violations of laws which Parliament or a legislature has given police a legal duty to enforce.

Police do not have a duty to enforce all laws. Statutes and regulations can be extremely complex, and police do not have the knowledge or training to enforce all laws in existence. This is why statutes and regulations charge police with duties to enforce some laws, but not others. While some statutes, such as the Criminal Code, the Highway Traffic Act, and the Controlled Drug and Substances Act do place duties on police officers to report and prevent their violations, the IRPA does not. Instead, the IRPA places the duty of preventing its violations on trained immigration officers. The only duty on police officers under the IRPA is to carry out immigration warrants, and this duty is triggered only where an immigration officer instructs a police officer to do so.

Given the complexity of immigration law, police would be incapable of adequately enforcing IRPA provisions without additional funding and training. There are many categories of persons without status in Canada who are lawfully entitled to remain here. Some of these categories are refugee claimants, failed refugee claimants who have not yet applied for a Pre-Removal Risk Assessment, applicants for permanent residence under the family sponsorship classes, recipients of a Federal Court stay of removal, Humanitarian and Compassionate applicants who have been accepted-in-principle, and applicants for an extension of work or study visas. Police officers do not have sufficient knowledge of IRPA provisions to effectively assess whether a person is in compliance.

We also examine whether, in the absence of a duty to report immigration status, police may have the discretion to report. We conclude that they do not. The PSA Disclosure of Personal Information Regulation governs when police may disclose personal information about persons they come into contact with. These regulations state that an officer may disclose personal information about an individual to federal officials if the individual is under investigation, charged with, convicted, or found guilty of an offence. However, it does not give police the discretion to share personal information about persons who are not under investigation, such as victims and witnesses of crimes or persons they encounter on the street.

The Regulations also state that in cases where police may disclose personal information (ie: if a person is under investigation, charged with, convicted, or found guilty of any offence), they must consider “what is consistent with the law and the public interest”. Given the deterrent effect that disclosing immigration status has on crime reporting, the disclosure of immigration status is not consistent with the public interest, nor is it consistent with the law. It infringes the legal duties police do have under the PSA to prevent crimes and assist victims of crimes. It is also inconsistent with the Victims’ Bill of Rights, which states that “the justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process”.

2) Disclosure of immigration status may violate equality rights

The second section of the report addresses equality and non-discrimination arguments for a complete DADT policy. We describe how the lack of a complete DADT policy may violate the non-discrimination provisions of the Ontario Human Rights Code and of the Charter of Rights and Freedoms.

First, we assess the discriminatory effect that disclosure of immigration status has on non-citizen victims and witnesses of crimes, who cannot access police without a fear of being deported or detained. We find that for these groups, the lack of a complete DADT policy constitutes “adverse effect discrimination”. Adverse effect discrimination exists when a policy or rule places a burden on a particular group for no valid reason. A policy may create adverse effect discrimination regardless of whether it is intended to have a negative effect on the group.

Citizenship is a prohibited ground of discrimination under both the Human Rights Code and the Canadian Charter of Rights and Freedoms. While it is only those non-citizens without immigration status that are denied equal access to police services, and not all non-citizens, our review of equality rights cases indicates that homogeneity of effect is not a requirement for making out a legal claim of discrimination.

Second, we address the particular effect that disclosing immigration status has on women without status. Domestic violence continues to be a major problem in Canada, and the powerlessness and fear experienced by all abused women is heightened for women without status. These women face the additional barriers of language, isolation, lack of familiarity with the legal system, and the vulnerability caused by their immigration status. Community groups and legal clinics report that their female clients without status do not access police protection for fear that immigration officials might be notified. These women experience a mistrust of police stemming from the belief that police are acting on behalf of immigration authorities, rather than in the interests of women who experience or witness violence. We find that this result violates women’s right to equal access to police services.

Third, we describe the adverse effect that limiting the “Don’t Ask” policy to victims and witnesses of crimes has on racialized groups in Toronto. The Report of the Commission on Systemic Racism in the Ontario Criminal Justice System indicates that racial profiling continues to be used by some Toronto police officers. The lack of an inclusive “Don’t Ask” policy that applies to members of the public as well as to victims and witnesses exacerbates this problem. Community agencies report that their racialized clients with and without immigration status are stopped by police and asked to produce documentation to prove that they have legal immigration status in Canada. This practice demeans the dignity of racialized persons and constitutes discrimination on the basis of race, which is a prohibited ground of discrimination under the both the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.

3) Disclosure of immigration status may violate crime victims’ right to life and security of the person

Disclosure of immigration status may violate the right not to be deprived of life or security of the person, except in accordance with the principles of fundamental justice. This right is contained in section 7 of the Canadian Charter of Rights and Freedoms.

Disclosure of immigration status endangers the lives and security of non-status victims of crime because they could be killed or harmed if they cannot access police protection. A rule need not intentionally harm life, liberty, or security of the person for section 7 to be implicated. Rather, it is enough that a policy, or lack of policy, have the effect of endangering life, liberty, or security of the person. Therefore, while the PSA does not expressly prohibit non-status immigrants from contacting police, the lack of a policy preventing police from reporting immigration status has the effect of cutting off access to police for persons without status.

Disclosure of immigration status also harms crime victims’ security of the person due to the extreme psychological stress they experience when they must endure abuse without being able to seek police protection. Previous section 7 jurisprudence indicates that severe psychological stress can constitute a violation to the right to security of the person.

Under s.7, a deprivation of life or security of the person will only breach the Charter if the deprivation is contrary to the principles of fundamental justice. The principles of fundamental justice are the commonly held ideas about fairness that underpin our legal system and give courts their legitimacy. They include access to basic procedural fairness for anyone accused of an offence, and the right not to have one’s rights violated by a law that is vague or arbitrary. Disclosure of victims’ immigration status is not in compliance with the principles of fundamental justice because it is arbitrary. Reporting persons’ immigration status to federal officials has no relation to police duties. It therefore infringes rights for no valid reason. Thus, disclosing victims’ immigration status to federal officials violates victims’ rights to life and security of the person in a way that is not in accordance with the principles of fundamental justice because it is arbitrary.

4) Violations of Charter equality and security rights are not justified by s.1

We have argued that the police practice of disclosing immigration status breaches constitutional Charter rights in several respects, including s.15 equality rights and s.7 rights to life and security of the person.

Section 1 of the Charter provides that some violations of human rights are legally permissible so long as they are “prescribed by law”, and so long as a court finds them to be “demonstrably justified in a free and democratic society”. However, the breach of equality rights caused by disclosure of immigration status is not justified under section 1 because it is not “prescribed by law”.

The “prescribed by law” requirement means that any rule which violates a human right must be enacted by Parliament or a legislature. A decision made by a public official is not prescribed by law if it is not required by a statute or by regulations created under a statute (such as the PSA Regulations on disclosure of personal information by the police). Because police decisions to inquire about or disclose immigration status are not required by statute or regulation, they are not prescribed by law. Therefore, the effect that police disclosure of immigration status has on equality rights is not legally permissible under section 1 of the Charter.

5) The lack of a complete DADT policy may violate international law

In the fifth section of this report, we explore international legal arguments supporting the implementation of a “Don’t Tell” policy. We focus on the provisions in the International Covenant on Civil and Political Rights, the Convention on the Elimination of all Forms of Racial Discrimination, and the Convention on the Rights of the Child. While international law is not binding on Canadian domestic courts in the same way as laws passed by Parliament and provincial legislatures, courts have been clear that international law should be used to inform interpretations of domestic law. These international human rights instruments, which are binding on Canada, support the implementation of a full DADT policy within Canadian police forces.

6) DADT policies in U.S. jurisdictions

The last section of the report briefly summarizes the use of “Don’t Ask, Don’t Tell” policies by police forces in the United States. There are currently thirty-two cities and counties in the U.S. with full DADT policies. This section provides a particular focus on the New York and San Francisco policies, which were first implemented in 1985 and 1989, respectively. Under the New York policy, police are prohibited from asking about a person’s immigration status, unless asking is a necessary part of an investigation. Police are also directed not to disclose persons’ immigration status if they find out about it, unless they are required by law to do so. Under the San Francisco policy, police are barred from asking about or disclosing persons’ immigration status. The only circumstances under which San Francisco police may assist immigration officials is if they are carrying out an immigration warrant.

Conclusion

After a review of statutory and common law, the Immigration Legal Committee is of the view that not only is there no duty on Toronto police to disclose persons’ immigration status, but that a practice of regular disclosure of immigration status by police is contrary to statutory, constitutional and international law.

A complete and robust DADT policy is the best course for police to follow. The policy should direct police not to ask about immigration status, and not to disclose immigration status to federal officials, should they find out about it by any means.

At the very least, this policy must be extended to victims and witnesses of crimes. However, the Immigration Legal Committee recommends that it be extended more broadly to all persons police come into contact with, in order reduce racial profiling and promote policing that respects the equality rights of all Torontonians.

Implementing a complete DADT policy would bring forward witnesses who were previously afraid to assist police. It would allow victims of crime who currently suffer in silence to seek police protection. It would mean that perpetrators of crimes against non-status persons would no longer be able to act with impunity. Until Torontonians have access to a full DADT policy, police officers will not have the cooperation of Toronto’s diverse cultural communities, and these communities will be unable to access police without fear.

(full report attached)

AttachmentSize
Immigration Legal Committee Report Re Toronto Police November 2008.pdf414.63 KB