New policing technology may worsen inequality

2020/09/02 Leave a comment

Good discussion of the risks involved, although not convinced that a judicial enquiry is the best way to address the many policy issues involved:

The Canadian Charter of Rights and Freedoms guarantees the right to equal protection under the law. It is a beautiful thing and a hallmark of a free democracy. Unfortunately, the freedom to live without discrimination remains an unrealized dream for many in Canada. Worsening this problem, the growing use of algorithmic policing technology in Canada poses a fast-approaching threat to equality rights that our justice system is ill-equipped to confront.

Systemic bias in Canada’s criminal justice system is so notorious that Canadian courts no longer require proof of its existence. Indigenous and Black communities are among the worst affected. The critical question is: what can be done? The right to equality under section 15 of Canada’s Charter, a largely forgotten right in the justice system, should serve to remind governments and law enforcement services that bold change is not merely an option. It is a constitutional imperative.

Most often, courts respond to discrimination in the justice system by granting remedies such as compensation, or exclusion of evidence from court proceedings. But these case-specific remedies seem to operate as pyrrhic victories, while systemic change remains elusive. A case-by-case approach to remedying rights violations is also costly for the public and burdensome to the very individuals wronged.

Making matters worse, Canadian police services are beginning to explore the use of algorithmic technologies that may exacerbate systemic discrimination.

As described in a recent report jointly published by the University of Toronto’s Citizen Lab and International Human Rights Program (co-authored by myself), the widespread use of algorithmic policing technology would be deeply problematic. Predictive policing technology is used to attempt to forecast individuals or locations that are most likely to be involved in crimes that have not yet occurred (and may well never occur). Data sets (including data sets created by police) are fed into algorithms that are then supposed to produce “predictions” through machine-learning methods.

Given the continuing over-representation of Black and Indigenous individuals in policing data caused by over-policing and discrimination in the justice system, using such data to forecast potential crime risks perpetuating or amplifying existing inequality. As scholar Virginia Eubanks describes, policing algorithms can operate as “feedback loops of injustice.”

In the report, we call for moratoriums on these controversial technologies, and urge Ottawa to convene a judicial inquiry on the legality of repurposing police data for use in algorithms. Section 15 may well prohibit police decision-making that is guided by algorithmic predictions that are rooted in biased data.

A judicial inquiry is important because section 15 is under-utilized and rarely applied in Canadian courts. Its scope is not well understood. There are substantial costs and legal hurdles that must be overcome to bring a discrimination claim in court. Despite some recent signs of hope, in-court litigation is slow and has not ended the cyclical harm experienced by vulnerable groups.

In theory, the public does not need to wait for courts to painstakingly deliberate these problems over decades. Section 15 prohibits all government action taken in the criminal law enforcement system that has the adverse effect of disproportionately disadvantaging racialized and Indigenous communities (or other groups protected by section 15). The constitutional prohibition operates automatically and is in effect right now.

Section 15 also requires governments and police services to move beyond circular debates as to whether the justice system’s damage is caused by overt racism, historic racism, institutional bias, poverty, or depleted mental health-care systems. It is all of the above. But section 15 prohibits much more than overt racism. It prohibits all government activity that has the purpose or effect of disproportionately disadvantaging protected groups.

When the Charter was enacted in 1982, governments were given a three-year grace period to comply with section 15 in particular — a concession granted in recognition of the hard work and substantial legal reform that would be required by governments to fulfil their new obligations. Nearly 40 years later, it is time for the burden of that hard work to be taken up and completed.

Source: https://www.thestar.com/opinion/contributors/2020/09/01/new-policing-technology-may-worsen-inequality.html

 

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Be prepared: The road to any change in policing will be long and arduous

2020/08/17 Leave a comment

Good thoughtful and realistic commentary by Richard Fadden,former national security adviser to the prime minister, director of the Canadian Security Intelligence Service, deputy minister of national defence and deputy clerk of the Privy Council:

It is now beyond reasonable debate that the issue of systemic racism in our law-enforcement institutions must be seriously addressed. This is not to suggest that every police service is equally flawed, or that every officer acts unacceptably, consciously or not; indeed, we must avoid ascribing all of society’s ills to the police who serve us, lest we throw the baby out with the bathwater, and ignore how other social institutions also contribute to systemic discrimination. But clearly, the current model of policing needs to change.

Political leaders, legislators, police board members, city councils and police chiefs in Canada and the United States have acknowledged as much, and with various degrees of specificity, have said that something must be done. What that might look like remains difficult to discern. Some have suggested the abolition of some police forces altogether; that is a non-starter, and will only divert attention away from more effective ways of dealing with the issue. Defunding is a more complicated proposal; most police forces are already underfinanced, but a careful look at how public funding is being used would be a worthwhile undertaking. Some police practices likely need to be more strictly limited or forbidden, including chokeholds and carding, while new ones should be mandated. And police-training curricula should be reformed so that they’re about more than just firearm requalification and criminal-law updates; it must be disseminated repeatedly over the course of all levels of a police career, and must send the message that the coercive power of the state should always be the last resort.

But whatever the solution is, it will be important to understand that change will be profoundly difficult – indeed, far harder than any simple message being delivered – because of the closed-personnel nature of these police services.

Closed-personnel organizations are ones in which young men and women join as recruits, plan to stay for their entire careers and work toward promotion within that force (some entry at mid-level is possible, but is relatively rare). Such systems aren’t the exclusive domain of police forces; they can also be found in intelligence agencies, foreign services, the military and in many religions.

All organizations develop a culture that determines not so much what they do but rather how they carry out their work, and police services are no exception, with the culture pervading widely across this closed loop. But while police culture varies from jurisdiction to jurisdiction and is a function of many factors, a crucial commonality is that officers spend the majority of their time dealing with a small part of the population that the rest of us would often rather not hear about. This gives rise to a we-versus-them mentality – one that’s amplified by the closed-personnel systems and their practical requirement that members strongly support one another, often against any outsiders. The pressures of this culture of conformity and mutual support also make it difficult to operate within the structure. Policing’s hierarchical, command-and-control approach to managing and standardizing behaviour – as is required by the considerable power held by individual police officers – should make it easier to discipline “bad apples.” Instead, police culture tends to counterbalance the ability of chiefs to act.

Over the course of my career, I’ve worked with police officers from many forces. Virtually all of them impressed me with their dedication, work ethic and belief that their role was central to peace, order and good government. But I remember that most only ever wanted to discuss their good qualities; areas where improvement might be possible were rarely ever raised. With some notable exceptions, usually at the chief level, they were professionally very conservative and resistant to any suggestions from outsiders such as myself, my colleagues, or cabinet ministers.

Without a shadow of a doubt, statements to press for change by political leaders, legislators and police chiefs are necessary, but they’re far from sufficient. Consider the challenges in dealing with sexual abuse among the Roman Catholic clergy despite the views of the Pope, or the Canadian Armed Forces’ sexual-harassment crisis despite the efforts of the Chief of the Defence Staff. Indeed, it is telling that front-line officers and their unions or associations are often missing from the list of those agitating for change.

To get officers on board, organizations that work with the police should, at minimum, transparently acknowledge their own complicity in policing’s problems. To suggest that police boards, city councils, responsible ministers, Crown counsel and criminal law courts knew nothing of these appalling practices is to suggest either gross negligence or incompetence, when neither view is warranted. This broader insensitivity to systemic racism is part and parcel of the issues in our police.

Systemic discrimination or racism anywhere is an assault on what most Canadians believe and what the Charter demands. Because of how police services are organized, however, transformation is going to be arduous and slow. Police chiefs working inside their organizations cannot do this alone: a considerable amount of political capital, structural untangling and society-wide patience is going to have to be expended if the long mission ahead has any hope of succeeding.

 

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