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“Missing and Missed”: 5 takeaways for systemic reviews

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We are often asked to determine whether systemic issues exist in workplaces, focussing on issues like sexual misconduct, harassment, racism, and alcohol and substance use. Unlike investigations, systemic reviews don’t examine isolated error or fault. Systemic reviews don’t uncover misconduct or wrongdoing of a particular person, or flag potential civil or criminal liability. Systemic reviews are different. Designed to identify issues involving an institution’s systems, policies, and practices, they can also scrutinize group behaviours, norms, and actions – in ways that an investigation or a court proceeding can’t.

The Independent Civilian Review into Missing Person Investigations, led by retired Ontario Court of Appeal Justice Gloria Epstein, is one such recent and major example. “Missing and Missed,” released in April this year, examines the concern that the victims of serial killer Bruce McArthur were given less attention and priority by the Toronto Police Service and the Toronto Police Services Board because of who they were. This Review was commissioned following the arrest of McArthur, who will serve life sentences for the deaths of Selim Esen, Andrew Kinsman, Majeed Kayhan, Dean Lisowick, Soroush Mahmudi, Skandaraj Navaratnam, Abdulbasir Faizi, and Kirushna Kumar Kanagaratnam.

Justice Epstein’s mandate was extremely comprehensive. Her team took on 12 areas of focus related to missing person investigations involving LGBTQ2S+ and marginalized and vulnerable communities in Toronto. All 1,109-pages of the report are publicly available here.  While the scope of this Review was very broad, its approach can teach us what to consider for reviews conducted in other workplace and institutional settings.

Here are five issues to consider when it comes to the methodology of systemic reviews.

1.Be ready for multiple components – To carry out a systemic review, you will need a work plan with various prongs. Justice Epstein’s Review involved multiple components. As part of the extensive outreach and engagement plan, the team facilitated public participation in a survey, plus organized a policy roundtable and a town hall meeting. The team also conducted many interviews with families, friends, police officers, and a variety of stakeholders. A Community Advisory Group was set up and consulted, to hear the perspectives of the affected communities. In terms of documentary evidence, the team obtained and examined over 80,000 pages of documents. The Review also commissioned its own research papers, overseen by a research director.

2.Anticipate recommendations upfront – Consider whether your terms of reference should specify what kinds of recommendations must flow from the ultimate report. In this Review, the terms of reference prescribed that recommendations had to include direction around ensuring LGBTQ2S+ participation in monitoring and implementing any changes suggested by the ultimate report. The terms of reference also directed the team to make recommendations around measuring and publicly reporting on the progress of change at the Toronto Police Service and Toronto Police Services Board.

3.Recognize when differential treatment is actually systemic discrimination – As part of your review, you will likely categorize shortcomings in process and procedure. Systemic discrimination takes place when an institution’s culture, structure, policies, or patterns of behaviour create or perpetuate disadvantage for persons or groups protected by human rights legislation. This can be in the absence of intention or overt bias on the part of individuals or groups of individuals – i.e., subjective intent to treat a member of a protected group unequally is not required to establish discrimination.

When considering whether bias and discrimination played a role in the processes you are examining, you should also consider the perceptions about bias and discrimination, which may have affected or influenced the application of those processes. “Missing and Missed” identified that differential treatment of the victims amounted to systemic discrimination. For many of the men who were reported missing, the investigations into their disappearances were inadequate. For example, investigators did not follow major case management requirements or provincial adequacy standards. Peel police and Toronto police did not work together effectively. A case management tool was only used as a “data dump.” Circumstantial evidence indicating that the cases of the missing men were connected was overlooked. The Review contrasted the police response in Skandaraj Navaratnam’s case, a Tamil man from Sri Lanka, to the response in Andrew Kinsman’s case, a white man who had many local friends and loved ones to forcefully advocate for a vigorous police investigation. The reviewers found that officers in Navaratnam’s case failed to appreciate that he might have been met with foul play. The Review found that very often, factors of vulnerability and marginalization play a role with respect to which cases get priority and which cases don’t.

4.Understand relationships and culture – When investigating or researching systemic issues, you need to have a clear understanding of the culture(s) you are examining. You need to be aware of and truly absorb the intersecting experiences and relationships between community members – expect, seek out, welcome and learn from criticism and diverse perspectives. Reviews often test what relationships are like between the service provider or workplace and the communities they purport to serve. Where something like overpolicing and underprotection has occurred, this must be articulated with a good grasp of historical dynamics and actual experiences of community members. For the review to be successful, the team must be able to see and understand gaps – here, the reviewers could determine that the investigators interviewing McArthur had very limited knowledge of gay community dating websites, how gay men connect, the places they frequent and the social interactions in Toronto’s Gay Village. Every workplace has its own culture, context and history; the better this is understood at the outset, the more meaningful and accurate a review tends to be.

5.Look ahead and plan for implementation – We all know that recommendation implementation needs to be monitored, and that this is best done internally and externally. “Missing and Missed” includes 151 recommendations designed to address the systemic issues the team identified. The Review calls on Toronto police to release an implementation plan by next year (April 30, 2022). This will, hopefully, avoid the tragic and frustrating outcomes where recommendations are not implemented in real or meaningful ways. Consider, for example, what we are hearing about now with respect to the former Supreme Court Justice Marie Deschamps’s report into sexual misconduct in the military. Since recommendations from that process were not, allegedly, appropriately implemented, a whole new external review, assigned to Madame Louise Arbour, is now necessary.

It’s imperative that organizations coping with repeat failures – some of which result in the most devastating of tragedies – gain value from reviews and assessments like this one.

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