Law Times

Law Times • JuLy 25, 2016 Page 7 www.lawtimesnews.com Police need more training on non-lethal force BY PAUL DUBÉ R ecently, it took just four minutes for David Orazietti, Ontario's Minister of Commu- nity Safety and Correctional Services, to announce changes that will fundamentally a f - fect law and order across the province. Responding to my office's investigation into how the province directs and trains police in de-escalating con- f lict situations with persons who have mental illness and/or are in crisis, Orazietti pledged to implement all 22 of our recommendations within a year. "No family, or police officer, should ever have to go through this kind of experience," he said, referring to trag- edies like that of Sammy Yatim, 18, who was alone on a Toronto streetcar, holding a small knife, when he was shot dead by a Toronto police officer three years ago. (That of- ficer, James Forcillo, will be sentenced imminently for at- tempted murder after a jury found that the first volley of shots he fired was justified but the second was not.) The minister's words are welcome, to be sure. But the sad truth is far too many have gone through that experi- ence, over too many years. The changes that my report recommended were not novel or new to Orazietti's ministry or anyone familiar with the long list of all-too- similar police shootings in this province, before Mr. Ya- tim's death and since. (Another 19 people have been shot dead by police in Ontario in that time.) These changes have been advocated for more than 25 years in hundreds of recommendations by coroners' juries and numerous studies and inquiries by experts in law and policing. So, what makes an ombudsman investigation differ- ent? As an independent officer of the legislature, I can hold provincial authorities to account for their actions — or lack thereof — in responding to a matter of such clear and urgent public interest. Our investigators re- viewed case after case of people who were shot by police in similar situations — in crisis, holding a small knife, scissors, a hammer — and spoke with their families and, in some instances, lawyers. We received 176 com- plaints and submissions. We also interviewed scores of experts in police training and de-escalation techniques, reviewed what is done in other jurisdictions, and, based on all this evidence, crafted recommendations that will benefit the police and public alike. Simply put, police will be required to use de-escala- tion techniques before resorting to lethal force, wher- ever tactical and safety considerations permit. This will represent a sea change in how police interact with per- sons in crisis, starting with a new regulation under the outdated Police Services Act (now being overhauled by Orazietti's ministry) and a new model for when and how police should respond in such situations. From that will f low a host of enhancements and im- provements to police training at every level, from new recruits at the Ontario Police College to seasoned of- ficers undergoing annual skills refresher training, all based on evidence gathered and our interviews with scores of police instructors and experts in de-escalation. This will bring Ontario more in line with other juris- dictions; at present, it lags behind most of Canada and elsewhere in equipping police with adequate skills and techniques to handle persons in crisis. Although some police services do their own de-escalation training — and a few were keen to help with our investigation, even inviting our investigators to observe some sessions — this can vary widely from one service to another. The legal and moral authority to ensure consistency for all Ontarians in how police use force lies with the provincial government. For example, it has long en- sured that police are extensively trained and have an- nual refresher courses in the use of firearms — but not de-escalation. In fact, our investigation found recruits take only five 90-minute classes in "de-escalation and communication" techniques in their 12-week course at police college, versus 15 classes in the use of firearms. What's more, the province has no clear definition of "de-escalation." It does not require de-escalation skills to be part of officer refresher training, nor does it monitor results where it exists. The minister's commitment signals an important and encouraging shift in the government's approach to policing matters. Although it has been studying po- lice use of force and interaction with individuals with mental illness for four years, there has been little result up to now, apart from the authorization of wider use of Tasers by frontline officers. It rarely exercised its au- thority to direct police services through regulation. For instance, it did so to limit high-speed police chases in 1999. But in just the past year, it was moved by strong public concerns to draft a regulation on carding (police "street checks"), which is to be implemented next year. And now it has pledged to implement a regulation on de-escalation, per our recommendation. That's another thing that makes an ombudsman investigation different: We recommend changes that are constructive. Our report was not critical of police in Ontario but of the fact that they were not adequately equipped to find non-lethal ways to handle difficult and potentially dangerous situations. Now the govern- ment is committed, as Orazietti put it, "to ensuring de- escalation is central to the way police respond to those in crisis, and that police officers have the necessary tools to defuse crisis situations in order to keep them- selves and the communities they protect safe." Our work on this, however, is far from done. We will monitor and report on the government's progress in implementing these recommendations over the next 12 months. The real measure of progress, of course, will be in the shootings and crises that are averted and the lives that are saved. LT uPaul Dubé is the ombudsman of Ontario. He was previously Canada's first federal taxpayers' om- budsman and has practiced law in New Brunswick and Ontario. COMMENT u SPEAKER'S CORNER Ruling reprieve for federal non-unionized employees T he question of whether it is ever lawful for federally regulated employers to dismiss non- unionized employees without just cause has been plaguing the federal employment sector with uncertainty for decades. It's been the cause of widespread judicial controversy. In Wilson v. Atomic Energy of Can- ada Ltd., 2016 SCC 29, the Supreme Court of Canada settled the controversy by re- solving that the unjust dismissal scheme, which Parliament devised in Part III of the Canada Labour Code, was designed to en- sure that non-unionized federal employ- ees can only be dismissed for just cause. This statutory protection is analogous to that enjoyed by unionized workers under collective agreements. In Wilson, Atomic Energy Canada Limited terminated Joseph Wilson's 4.5- year employment without cause, but it provided him with a severance package of 24 weeks. Wilson filed an unjust dismissal complaint under the Code, asserting that AECL fired him in reprisal for complain- ing about its improper procurement prac- tices. At the outset of the unjust dismissal hearing, AECL sought a preliminary rul- ing on whether a dismissal without cause but with pay in lieu of notice meant that the dismissal was not "unjust." The adjudi- cator ruled that dismissal without cause is automatically an unjust dismissal and that an employer could not resort to severance payments in order to avoid a determin- ation under the Code about whether the dismissal was unjust. Displeased, AECL applied for judicial review. On judicial review, the Fed- eral Court quashed the adjudi- cator's decision, because, in its view, the Code did not preclude employers from dismissing non-unionized employees on a without-cause basis. The Fed- eral Court of Appeal agreed, but it reviewed the issue on a standard of correctness. On appeal, the SCC ma- jority, under the pen of Justice Rosalie Abella, clarified that the decisions of labour adjudicators applying the unjust dismissal provisions of the Code attract a reasonableness stan- dard, which is concerned with whether a decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. Justice Abella started the conversation about whether the reasonableness and correctness standards of review should be collapsed into a single more broadly con- ceived standard of reasonableness. Its im- petus: simplification of the judicial review process. However, both concurring and dissenting justices expressed caution in the proposed revamping of the standards of review. Applying a reasonableness standard, the SCC concluded that by permitting em- ployers to dismiss employees without cause simply by providing adequate severance pay falls outside the range of acceptable out- comes, because it deprives non-unionized federal employees of plurality of protections and remedies available to them under the Code (e.g. require- ment to provide reasons, re- instatement, equitable relief). The SCC explained that the foundational premise of the common law scheme, which includes a right to dis- miss on reasonable notice without cause or reasons, has been ousted by the Code, which includes a regime re- quiring reasons for dismissal. It added that the protections that the Code granted to em- ployees cannot be superseded by a more restrictive common law regime. Consequently, the unjust dismissal provi- sions in the Code are not a mere proced- ural mechanism but a substantive labour standard. The Code contemplates an option for dismissed employees to pursue their com- mon law remedy of reasonable notice or pay in lieu in the civil courts instead of availing themselves of the unjust dismissal provisions and remedies under the Code. However, if they choose to pursue their rights under the unjust dismissal provi- sions of the Code, only those provisions apply. The Code imposes a 90-day limit- ation for complaints about unjust dismiss- al, after which the employee would lose his or her right to access the unjust dismissal procedure under the Code but retain an option to challenge the lawfulness of a dis- missal in the civil court. The two types of proceedings differ. The unjust dismissal procedure under the Code is more efficient than a civil action because it involves: less stringent evidentiary rules; an expert adjudicator who is well versed in the factual nuances of employment relation- ships; and a stricter timeline than a court action. Remedies under the Code are more extensive and expensive than those a court might award under the common law. Wilson is a welcome reprieve for non-unionized federal employees, which restored the job security contemplated by the Code. Its practical implication is that all dismissals without just cause are unjust dismissals, unless they are related to layoffs or discontinuance of a job. Given that rem- edies under the Code are superior to those the civil courts can award, it is likely that, in the Wilson aftermath, there would be an increase in unjust dismissal complaints. The Wilson effect on federally regulat- ed employees is equally profound, albeit from different perspectives. Not only did it alter the nature of the employment rela- tionship, it also significantly curtailed the employers' ability to manage their work- forces. Employers should keep in mind that there is no unjust dismissal protection available to employees who are managers or employed for less than 12 consecutive months. Nor can the protection be in- voked in cases of layoffs or discontinuance of a job. LT uNikolay Chsherbinin is an employment and immigration lawyer and author of The Law of Inducement in Canadian Employment Law. He can be reached at 416-907-2587 or by visiting nclaw.ca. Labour Pains Nikolay Chsherbinin

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