There is a slightly revised version of the terms of reference for the Missing Persons Review that will be discussed at the Toronto Police Services Board Meeting on Thursday August 23, 2018. Aside from granting more autonomy and discretion to the reviewer it does not change the major features of the terms of reference that I analyzed earlier this summer in the following piece.
By Gary Kinsman
The Toronto queer, trans and sex worker communities have been rocked over the last eight years by a series of missing person cases that ended up in murders and death. This has had a specific impact on trans people, sex workers and men who have sex with men from South Asian and Middle Eastern backgrounds. The police were an obstacle in addressing these missing person situations and I argue that they placed people in our communities in danger. In this context I finally got around to critically examining the terms of reference for the Toronto Police Services Board mandated Independent Civilian Review into Missing Person Investigations. I hope these comments are useful for those from our communities operating within the framework of this review, but also for those critiquing its limitations, and those working beyond it for alternatives to policing. Hopefully it is of use to those combining within, against and beyond strategies regarding this review.
My background for this.
I bring to this examination my experiences as a left gay activist since the early 1970s and my work in critically analyzing the terms of reference and operation of a series of government related commissions of inquiry and official reports. In doing this work I draw on what I learned from the work of feminist sociologist Dorothy Smith on text-mediated social organization regarding how official documents like terms of reference are used to organize inquiries. I also draw on the work of George Smith on the text-mediated organization of the sexual policing of gay men through the criminal code and the social organization of official responses to AIDS (see references at the end). This engagement ranges from the 1957 English Wolfenden Report, which argued for the public/private and adult/youth regulation of homosexual sex and for the criminalization of sex work in ‘public’ that shaped the 1969 criminal code reform in Canada; to the 1950s Royal Commission on Criminal Sexual Psychopaths which led up to the Dangerous Sexual Offender legislation used in the infamous Klippert case; to the 1980s Badgley and Fraser reports on sexual abuse against youth people and questions of pornography; to the Hughes Commission into the abuse at the Mount Cashel orphanage in St. John’s; to the first National AIDS Strategy and more.
This also includes the activist response and critical analysis of the Bruner inquiry on the Toronto bath raids in 1981 as it was taking place. The Bruner Report, while establishing gays as a legitimate minority group as a result of the mass mobilizations against the raids, argued that the main problem was one of a lack of communication between the police and the gay community. The central solution proposed was for a liaison committee between the police and the gay community. But the problem was not any lack of communication. This liaison proposal was opposed by the Right to Privacy Committee (RTPC), the mass defence organization for those arrested, which argued that the problem was the criminal code directing the police against gay sex and that liaison committees with the police in the context of the criminalization of queer sexualities would lead to some people in the gay community policing others. Despite opposition from the RTPC and the majority of the Toronto Gay Community Council, others went ahead with the liaison with the police ripping the Community Council apart.
Official Reviews: A question of social organization
Official state inquiries and reviews are a common response within state relations to a crisis of legitimacy or a major challenge to a state agency. The objective is to try to repair broken ‘public trust.’ The inquiry social form is an attempt to both recognize a problem in state operations but also to come up with solutions within the framework of existing state forms of organization – in this case the police.
Sometimes, as in this case, it is community organizations led by the Alliance for South Asian AIDS Prevention (ASAAP) that have pushed for such an independent civilian investigation and helped to establish its terms of reference through community input. In this situation this review is an attempt to solve the crisis of legitimacy for the Toronto Police after the missing persons crisis within our communities and the existence of a serial killer. This is therefore an attempt, despite all the important points raised in the terms of reference, to restore legitimacy for the police. Although an independent civilian review mandated by the Police Services Board and not the police investigating themselves this is not a people’s inquiry or a community-based investigation which would have a rather different social character. This is very different from the Citizens Independent Review of Police Action (CIRPA) that existed in the 1980s in Toronto or the various COP Watch programs that have existed in centres across the US and Canada.
The terms of reference for these official investigations are crucial to guiding their work. They are a set of instructions and are often used to focus only on what is explicitly mentioned in them. This provides grounds for inclusion and exclusion. In this way they can be crucial in establishing the framework in which final recommendations are made. They are therefore important to read critically as they are used to guide and organize the work of official reviews. In this review the organizing by ASAAP, and the significant coalition of groups it is working with, have had a great deal to do with establishing a number of the important aspects of the terms of reference. The terms of reference already became a bit of a contested terrain with ASAAP led community pressure helping to form them. The working group that proposed the terms of reference to the Board was made up of one Police Services Board member, and community members with the assistance of a criminal lawyer. This establishes important aspects of this review including the emphasis on community consultations that can be used by groups to push this review process further.
It is clear in reading these terms of reference that various community and advocacy organizations led by ASAAP, but also including Maggies the Toronto Sex Worker Action Project, have had an impact on shaping the language used in various sections. This includes listing the names of all of the men Bruce McArthur is accused of murdering along with Alloura Wells and Tess Richey so they all can be investigated to at least some extent. It also includes the use of terms like ‘intersectionality’, ‘non heteronormative’, ‘marginalized communities’ and more. These need to be used and extended by those intervening within the review process. While it is important to see some of our community and activist language in these terms of reference we also need to critically examine how they can be used and shifted so that we do not simply uncritically identify with this institutional process.
In this brief analysis I focus on a critical textual analysis of these terms of reference as approved by the Police Services Board on June 21, 2018 but I also bring in aspects of the social organization of their formation. This process is not usually as visible but given ASAAP’s organizing for this review we have far more knowledge of this than in many other cases. The funding for the review (estimated at $2.5 to 3 million) is to be secured from the city and the work of the review could be more than 15 months.
Exclusion of the McArthur and Schlatter legal cases
The biggest limitation with these terms of reference is the complete exclusion of the police investigation (or lack of it) into the charges against Bruce McArthur and Kalen Schlatter. Earlier police encounters with, or complaints about McArthur seem to be entirely excluded when this is a matter of major importance. For instance, we know that McArthur was charged and convicted of assault for hitting a sex worker over the head in 2001, that McArthur was interviewed by the police in 2013 and that in 2016 he was again questioned after allegedly choking a man in a sexual encounter. This exclusion includes when reviewing Project Houston (launched in 2012 to investigate the disappearances of Skandaraj Navaratnam, Majeed Kayhan, and Abdulbasir Faizi but shut down by the police in August 2014) and seems to also include the missing person investigations of any alleged victim of Bruce McArthur. How the police determined the identity of any specific suspects will also be excluded (p. 3). Unfortunately, many of these questions will have to be postponed until the public inquiry following the McArthur murder trial which will delay this for many years. This is standard in terms of inquiries going on while criminal legal proceedings are taking place. Regardless of the legal merits this means a large part of what needs to be investigated for us is excluded from the terms of reference. This is made clear in a number of places where it is stressed that no criminal investigation or prosecution is to be prejudiced in any matter by this review.
The second major limitation to note is that this is all done within the framework of the Toronto Police Services Board and therefore it will be difficult to raise more profound questions about policing and its social organization. Although the Police Services Board is a civilian body it operates under the Police Services Act in relation to the police as a social institution that maintains oppression and social inequalities. While it has a ‘consultative’ relation with the Chief of Police it has little direct impact on everyday police operational practices.
Communication and Bias
There is a focus in the terms of reference on ‘communication’ between the police and the LGBTQ2S+ communities as the problem including on whether the police consult with people reflecting the ‘diversity’ within the community (p. 6). The implication is that the problem is one of communication and not the problems with policing as a social institution. It is important that those intervening within the review process make clear that the problem has far deeper roots than problems in communication.
Problems are packaged in the terms of reference largely as forms of police ‘bias.’ This can imply that the problem is police personal or perhaps institutional bias against particular groups in society. But racism, heterosexism, transphobia, poor bashing, and sex worker bashing are not merely questions of bias – they have deeper social and institutional roots often embodied in the laws the police enforce, in police operational practices, and police cultures. The formulation of bias can imply that the problem is simply one of attitudes or lack of education and the solution may be treating everyone neutrally or the same in a non-biased fashion. But in a society defined by social oppression and pervasive social inequality, this does not necessarily help the oppressed. On p. 5 there is reference to “implicit or explicit bias or discrimination (at the individual and systemic level)” but the focus throughout is largely on bias. At the same time the use of systemic discrimination may provide an opening for those intervening in the review process to push this further. The term ‘bias’ is far more limited in its impact than the term ‘institutionalized discrimination in police practices’. Broader questions about social power relations, forms of oppression, and the police as a social institution must be made central.
Missing Persons and Community Policing
The central focus as ASAAP and supporters pushed for is on problems with procedures and practices regarding missing person investigations. This needs to be an important focus but broader problems about the police and racism against Black, Indigenous, and other people of colour, heterosexism, hostility to trans, homeless, poor people, and sex workers must also be raised. Of course, all of these can impact on missing persons investigations. The review focusses on what is relevant “to missing person investigations and community relations to determine whether they are adequate to ensure effective, efficient and bias-free response to missing person reports” (p. 4). This can be mobilized to narrow the scope of this investigation and this will need to be resisted. While there is mention of ‘community relations’ this is referring to the police relation to the ‘community’ and police work called ‘community relations’ and is not about community critiques of policing unless they directly relate to the policies and procedures regarding missing person investigations.
References to police community work and relations are references to community policing which was developed in response to some of the problems with more repressive forms of policing. One source of the emergence of community policing was in response to the Brixton riots in England in the early 1980s when Black communities rose up against racism and police repression. Rather than addressing these concerns ‘community policing’ was used to do surveillance work on the Black community and to try to engage parts of the community in policing efforts against others in the community. Historically, community policing practices have the same objective as more repressive forms of policing in developing police surveillance and regulation of community organizing and to isolate groups critical of the police from broader community efforts. It is vital to keep this in mind and not get taken in by ‘community policing’ as the solution.
Compelling Cooperation and Community Consultations
In specific relation to missing persons investigations the review can compel police and others to cooperate fully. This could be important and those intervening within this process need to push for as much of this as possible to get some of the answers we need.
The community consultations mandated in the terms of reference are somewhat unique and are a result of the ASAAP led intervention. They can be very important if people make comprehensive critical submissions from our diverse communities and movements including Black and other people of colour, Two Spirit people, the homeless and people living in poverty including anti-poverty activist groups, advocates for refugees, migrants and the undocumented, sex worker organizations, and more. The review will focus on missing person related questions. The reviewer will also engage a committee of advisors although the composition of this is not clarified in the terms of reference. It is vital that this community consultation aspect not be allowed to be restricted and curtailed and that community consultation not end up being implemented in a neoliberal managerial fashion that limits its impact.
Cultural Competence, Lack of Status and Homelessness
On p. 4 the terms of reference refer to whether “culturally competent expertise is available to or relied upon by the police in missing person investigations”. They then specifically mention gender identity, gender expression, race, ethnic origin and ‘intersectionality’– which is crucial — but not specifically class, poverty, homelessness, immigration status, sexuality or sex work. They suggest that having ‘culturally competent expertise’ may be adequate in addressing these questions potentially allowing for the reduction of these questions to being about ‘culture’ and ‘cultural’ differences. This could be used in a similar way to how official state multiculturalism practices often work to legitimize the celebration of different cultures without putting the central dominant culture in question (whiteness for instance) , and without addressing underlying social and class forms of social power, inequality and oppression.
On p. 5 regarding people without legal status there is no specific investigation mandated of the cooperation of Toronto Police with immigration and Border control agents and no mention that Toronto is supposed to be a Sanctuary City. The review is not mandated to look at the problems created in Toronto through federal immigration and refugee policies which are a crucial part of the problem or at racist police practices like carding. These matters need to be addressed. Some openings may be provided by the section of the terms of reference asking for an investigation of the practices of the police that may discourage people from being reported missing, and here Kirushna Kumar Kanagaratnam is specifically mentioned.
Regarding homeless people, Dean Lioswick is mentioned but there is no mention of the various laws and regulations that the police routinely use against homeless people and the poor, and where homelessness comes from in terms of the lack of affordable and accessible housing and why homeless people and people without status do not look at the police as their friends but instead as a social force to be avoided. In other words, what is specifically being investigated does not go far enough. It is not simply a question of police attitudes and bias but of the everyday laws and regulations that the police enforce that make them a danger for people without status, homeless people, Black, Indigenous and other people of colour, and criminalized women including sex workers.
Police Created Danger
On p. 5 the review is mandated to look at police announcements on ‘public security’ but there is no clear mandate to address how the police created dangers for people in our communities. Did the police denial that there was any connection between these missing people and no serial murderer until January 2018 put people in danger leading to more murders? These are important questions to be addressed and this may require pushing the boundaries of the review.
This is relevant especially given the Jane Doe case when the police did not warn women about a serial rapist in the hopes of him striking again so he could be caught. Meanwhile women were put in danger. We should also remember in this context the remarks of Toronto Police Chief Saunders in his interview for The Globe and Mail where he criticized people experiencing sexual assault for not coming forward to the police for problems in police investigations and his assertion that police publicly recognizing that there was a serial killer could have undermined a possible future prosecution. Here he seems to argue that it was not the fault of the police but of people in our communities for not coming forward to the police. He also suggests that people in our communities were put at risk so the police could successfully catch and charge the serial killer.
There is mention of investigating whether for those involved in non-normative sexualities there are “actual or perceived barriers in relation to their willingness or ability to share information with the police” (p. 6). It seems assumed that sharing information with the police is a good thing even through this presents many dangers for many people right now, especially for those without status, sex workers, and Black people and other people of colour. It also does not mandate investigation of the laws, rules, police practices and forms of police organization that create these problems. Again pushing the review to address these questions will be important.
When it comes to problems with laying complaints about the police (p. 7) they mandate no investigation of the current procedures which allow the police to investigate themselves which is a crucial part of the problem and why people often do not lay complaints with the police.
The terms of reference mandate an investigation of police training where they write about “bias-free policing” and “community liaison” (p. 7) and in this context they refer to “cultural competence” again potentially reducing it to a question of cultural differences and not investigating police organization and practices more generally. They mention intersectionality and its impact on marginalization (p. 7) which is very useful but there is a danger this can be used in the more neoliberal managerial shifting of intersectionality which does not address class or state relations and reduces ‘intersectionality’ from a critical analysis of social power relations to questions of diversity and inclusion. Again, they refer to “biased assumptions” on the basis of “race, sexual orientation, immigration or similar grounds” (p. 7). Not only is class not mentioned, but neither specifically are gender identifications and practices or involvement in sex work.
In the terms of reference it is mentioned that the review will look into a series of policing related reports. This includes the Bruner report regarding the 1981 Toronto bath raids which likewise was not allowed to investigate the actual charges laid in the bath raids. As mentioned earlier it concluded that the central problem was the lack of communication between the police and the gay community and not the laws and police organization that mandated the police to arrest men who have sex with men in the baths. This list also includes The Review of the Investigation of Sexual Assault – A Decade Later which includes engagement with the Jane Doe situation and the Missing Women Commission of Inquiry in British Columbia in 2012. Bringing in insights from these cases of police making women, and Indigenous women in particular, vulnerable to violence could assist in pushing this review to go further.
The terms also refer to examining national and international “best practices” (a term unfortunately often also used in neoliberal management strategies) with the goal of “bias-free policing and maintaining positive working relationships with marginalized communities” (p. 7). Again the implication is that ‘marginalized’ communities working with the police is the goal when it would often mean participating in the policing of others within our communities or putting sex workers, people without status, homeless people and others in danger.
Police Obstruction of Community Efforts
Finally, how the police obstructed and discouraged efforts by friends and organizing within our communities to locate these missing people, and to collect information on them, and how the police helped to shut down community organizing on these questions is not specifically addressed. This is a central problem with how the police made more people vulnerable to murder given they were denying until early 2018 that there was a serial killer. Given that the police were literally leaving people to be murdered only a grass roots community response which was starting to happen before it was discouraged by the police could have helped. Related to this while they mandate asking whether the police ask organizations within our communities to “assist with missing person investigations” (p. 6) there is no mention of police recognition of, and perhaps support for, community or movement led initiatives which exist outside the framework of policing.
This is it for now. Again I hope these comments are of use to those working within, against and beyond this civilian review into missing person investigations. I hope they help to situate our various forms of activism in relation to the review and to identify areas to push on and to critique. I welcome responses, critiques and extensions of this analysis.
Thanks to Haran Vijayanathan and Shakir Rahim from the Alliance for South Asian AIDS Prevention for their helpful comments and background information . They bear no responsibility for what I have written here. Mistakes are mine alone.
Gary Kinsman is a queer liberation, AIDS, anti-poverty and anti-capitalist activist living on Indigenous land and in solidarity with Indigenous peoples. He is currently involved in the AIDS Activist History Project and was involved in the We Demand an Apology Network. He is the author of The Regulation of Desire, co-author of The Canadian War on Queers and co-editor of We Still Demand! and Sociology for Changing the World. He is Professor Emeritus in Sociology, Laurentian University and his website is: http://radicalnoise.ca/ He can be reached at gkinsman@laurentian.ca
Some References.
The Alliance for South Asian AIDS Prevention, Deputation to the Toronto Police Services Board on Motion for Independent External Review of TPS Missing Person Investigations,” March 22, 2018.
Victoria Gibson, “Review of Toronto police handling of missing persons will benefit from ‘rare’ degree of community input, members say,” Toronto Star, April 20, 2018, https://www.thestar.com/news/gta/2018/04/20/review-of-toronto-police-handling-of-missing-persons-will-benefit-from-rare-degree-of-community-input-members-say.html
Patrizia Gentile, Gary Kinsman, Pauline L. Rankin, (Eds.) We Still Demand! Redefining Resistance in Sex and Gender Struggles. Vancouver: UBC Press, 2017
Wendy Gillis, “Review cases of alleged McArthur victims working group tells Toronto Police Board,” The Star, June 15, 2018, https://www.thestar.com/news/city_hall/2018/06/15/review-cases-of-alleged-mcarthur-victims-working-group-tells-toronto-police-board.html
John Holloway, In, Against and Beyond Capitalism, The San Francisco Lectures, Oakland: PM Press, 2016.
Tom Hooper, “‘Enough is Enough’: The Right to Privacy Committee and Bathhouse Raids in Toronto, 1978-83.” PhD Dissertation, York University, 2016.
Ryan Patrick Jones, “Toronto Police Services Board Approve s Sweeping Review of Missing Persons Cases,” CBC News, June 21, 2018, https://www.cbc.ca/news/canada/toronto/toronto-police-services-board-approves-sweeping-review-of-missing-persons-cases-1.4717321
Gary Kinsman, “’Restoring Confidence in the Criminal Justice System’: The Hughes Commission and Mass Media Coverage – Making Homosexuality the Problem,” in Atlantic Association of Sociologists and Anthropologists (ed.) Violence and Social Control in the Home, Workplace, Community and Institutions, St. John’s: ISER Press, 1992, pp. 211-269. ,
Gary Kinsman, The Regulation of Desire, Homo and Hetero Sexualities. Montreal: Black Rose, 1996.
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Gary Kinsman, “From Resisting Police Raids to Charter Rights: Queer and AIDS Organizing in the 1980s” In W. K. Carroll and K. Sarker (Eds.), A World to Win, Contemporary Movement and Counter-Hegemony Winnipeg: ARP Books, 2016, pp. 209-302..
Gary Kinsman, “Queer Resistance and Regulaton in the 1970s, From Liberation to Rights.” In P. Gentile, G. Kinsman, and L. P. Rankin (Eds.), We Still Demand! Redefining Resistance in Sex and Gender Struggles Vancouver: UBC Press, pp. 139-162.
Gary Kinsman,“Within, against and beyond: Urgency and patience in queer and anti-capitalist struggles,” in Alex Khasnabish and Max Haiven, eds., What Moves Us, The Lives and Times of the Radical Imagination, Halifax and Winnipeg: Radical Imagination Project, Upping the Anti, Fernwood Publishing: 2017, pp. 131-152.
Gary Kinsman & Patrizia Gentile, The Canadian War on Queers: National Security as Sexual Regulation. Vancouver: UBC Press, 2010.
Arshy Mann, “When Will Toronto Police Chief Admit Something Went Wrong with the Serial Killer Investigation,” Daily Xtra! March 2, 2018. https://www.dailyxtra.com/when-will-torontos-police-chief-admit-something-went-wrong-with-the-serial-killer-investigation-84886
Arshy Mann, “Toronto Police Board Approves External Review into Handling of Missing Persons,” Daily Xtra! March 23, 2018, https://www.dailyxtra.com/toronto-police-board-approves-external-review-into-handling-of-missing-persons-85393
Arshy Mann, “Kirushna Kumar Kanagarantnam was a victim three times over,” Daily Xtra, May 4, 2018, https://www.dailyxtra.com/kirushna-kumar-kanagaratnam-was-a-victim-three-times-over-86342
George Smith, “Policing the Gay Community: An Inquiry into Textually Mediated Social Relations,” International Journal of the Sociology of Law, 16 (1988), 163-183.
George Smith, “Political activist as ethnographer.” In C. Frampton, G. Kinsman, A.K. Thompson, & K. Tilleczek (Eds.). Sociology for changing the world: Social movements/Social Research Black Point, NS: Fernwood, 2006, pp. 44-70. .
Dorothy Smith, Writing the Social: Critique, Theory, and Investigations, Toronto: University of Toronto Press, 1999.
Dorothy Smith, Institutional Ethnography: A Sociology for People, Lanham, NY: Alta Mira, 2005.
Toronto Police Services Board, “Terms of Reference for the Independent Civilian Review into Missing Person Investigations,” Approved by the Toronto Police Services Board on June 21, 2018.