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Journalists do our jobs in the belief that journalism – at its best – matters to citizens the world over.

As journalists around the globe unite on this World News Day to proclaim publicly that journalism makes a difference we must not turn away from the discouraging fact – as stated in the 2022 Reuters Institute Digital News Report – that, “the connection between journalism and the public may be fraying”.

Journalists believe wholeheartedly that journalism matters. But as the annual report on global digital news consumption published in June by Oxford University’s Reuters Institute for the Study of Journalism makes clear, the public’s trust and interest in news is falling, with an alarming number of people deciding to avoid news altogether.

Today is a day to celebrate journalism. But it is also a time for the global journalism community to aim to create deeper public understanding of the role that journalists play in providing trustworthy news and information that serves citizens and democracy. 

Having served as public editor of Canada’s Toronto Star for 13 years, a role in which I had opportunity to connect and communicate with many thousands of readers expressing concerns and complaints about the Star’s journalism, I came to know that journalists must never take it for granted that our news audiences get what we do and why we do it.

We must explain ourselves and our work to you. We must be transparent and accountable about our methods, mission and purpose. To be trusted, we must be trustworthy.

Trustworthy journalism is news and information that is accountable, accurate, fair, and produced in line with journalism’s highest ethical standards. That means correcting our mistakes when we err.  It means making clear distinctions between fact and opinion. It demands centering diversity and inclusion in the subjects and sources on which we shine journalism’s light and in the corps of journalists who report the news.

World News Day is intended as an important reminder to the public of why journalism – at its best – matters. As journalists we have an obligation to explain to you the ethical standards that distinguish responsible journalism in the public interest from much of the noise of the net.

In a world of viral misinformation and outright lies, a world in which younger audiences increasingly turn to social media as their main source of news, public understanding that journalism at its best abides by and is accountable to journalistic standards matters much.

I know first hand the vital importance of engaging with our news audiences, of seeking to create greater public understanding of journalism’s standards and the distinction between misinformation and real news. I believe that when journalists explain our work to you and hold ourselves accountable to our audiences, we can enhance trust and interest in journalism.

Indeed, to mark World News Day in 2019, I asked Toronto Star readers for their perspectives on why #Journalism Matters to them. Several hundred readers responded, most showing great appreciation for fact-based journalism that aspires to live up to journalism’s highest standards. 

“In this age of the public’s acceptance of lies and misinformation coming at us from every direction we must be able to rely on at least one institution that respects the truth, forces public figures to answer to those who serve them and holds commitment to the public good as something to strive for,” wrote reader Leo Keeler.

Reader Devan Munn’s words spoke straight to the heart of the universal message World News Day seeks to communicate to global news audiences. 

”It is my conviction that in a world without fact-based reporting, the powerless will have no voice, the powerful will not be held accountable and the public will never know the difference,” Munn said.

Journalism, at its best, matters to all of us throughout the world. Today, and every day.

About the author

Kathy English, chair of the board of the Canadian Journalism Foundation and former public editor of the Toronto Star, consults with newsrooms on journalistic trust and transparency standards.

To mark World News Day on September 28, 2022, the World News Day campaign is sharing stories that have had a significant social impact. This particular story, which was shared by The Toronto Star, was published on December 11, 2021. 

Marineland’s Kiska is Canada’s lone captive orca. Animal experts are raising  concerns about her welfare. But how do you help a 45-year-old killer whale?

The “world’s loneliest orca” in captivity lives in a theme park near Niagara Falls, a home she has known for more than four decades. For the past 10 years, she has been her tank’s only inhabitant. She has developed ritualistic behaviours that experts call atypical: She floats in one corner of her tank. She circles the tank slowly and repeatedly, often following the same path. She thrashes her body near the tank wall with such force that each movement creates waves that crash high enough to crest over the edge of the enclosure. As abruptly as the thrashing starts, it stops again. Soon, she’s back to swimming in slow, counter-clockwise circles. Sometimes she lingers near the water’s surface, motionless. 

Her name is Kiska and she is Canada’s last captive orca. Her tank is one of three in the park’s Friendship Cove. A few times a day, she interacts with Marineland’s trainers and is watched by the families who visit the park each season to see her swim. In a neighbouring tank, several of the theme park’s belugas swim together, separated from the orca by decorative rocks and metal gates. But everything Kiska does, she does alone. 

Researchers say Kiska is the only captive orca in the world in this predicament, living in total isolation on public display. For years, there has been wide consensus among experts in captive wildlife and wild orca populations that Kiska’s solitary life is unnatural. But over the past several months, videos recorded at Marineland and shared online have gone viral, capturing the attention of people far beyond Canada. Headlines from media around the world have labelled Kiska “the world’s loneliest orca.”

This week, a new assessment of the animals at the park conducted by Ingrid Visser, principal scientist at the New Zealand-based not-for-profit Orca Research Trust, was released. Visser is among the world’s most active researchers studying the effects of captivity on cetaceans. The report, titled “Assessment of Situation of the Cetaceans Held at Marineland of Canada,” was prepared for the France-based organization One Voice and argues Kiska’s situation is “profoundly disturbing” and represents an orca struggling to thrive in her captive environment.

What Kiska should have, most experts agree, is companionship.

She should have another killer whale to keep her company, Lanny Cornell, a marine-mammal veterinarian who has worked with Marineland and SeaWorld, told a Senate Standing Committee on Fisheries and Oceans in May 2017. But a 2015 Ontario law barring bringing new orcas into captivity and applauded by many observers prevents the park from purchasing a companion for Kiska. So does the 2019 federal Ending the Captivity of Whales and Dolphins Act. Releasing her to the wild, Cornell told the panel, “would be her death sentence,” given a persistent medical issue discovered when Kiska was first captured. Cornell did not respond to interview requests from the Star for this article.

For decades human actions have confined Kiska’s life. Recent progress ensures there won’t be others like Kiska, but it has hardly solved all of Kiska’s problems. The Visser report and viral videos have shone a light on questions surrounding the orca, galvanizing a long-simmering campaign. A growing global chorus of researchers, activists and animal lovers is insisting that we must help Kiska. 

The question now is how.

Kiska was caught off the coast of Iceland in 1979, when she was roughly three years old. She arrived at Marineland the same year. Through the 1960s and into the 1970s, orcas were routinely captured in nets off the west coasts of the U.S. and Canada. After the practice was barred there, captors moved to the coast of Iceland, where they continued through the 1980s.

At 45 years old, Kiska is middle-aged compared to her wild counterparts, but an outlier for captive orcas. During her time at Marineland, 19 other orcas have lived in the park, several birthed by Kiska herself. She had five calves: Kanuck, Athena, Hudson, Nova and one baby who was unnamed. None lived beyond age six, according to data available on Ceta-Base, an organization that tracks cetaceans in captivity around the world.

Marineland’s orca population dwindled through the mid-2000s. Some of Kiska’s tankmates were sold to other parks. Others died. In 2006, Marineland struck a breeding agreement with SeaWorld, trading four belugas for Ikaika, a young orca intended to be a mate for Marineland’s female orcas. Five years later, Ikaika was returned to SeaWorld, the result of a public custody battle between the two parks. By that time, the park’s orca population was down to two. Now, with Ikaika gone, Kiska began a new life on her own. 

Over the years, Kiska has developed ritualistic behaviours. Experts who have studied animals in captivity call these “stereotypies”: abnormal, repetitive and non-functional behaviours that typically signal stress in captive animals. In one interview with the Star, Ingrid Visser, the New Zealand researcher, posited that in her barren tank near the Niagara Falls, Kiska might be experiencing a level of “psychosis.” (Marineland did not speak to the Star for this story but has maintained over the years that its animals are well cared for and healthy.)

The behaviours are detailed in Visser’s report, based on photos and video evidence collected over four trips to Marineland between 2015 and 2021. The report offers renewed insight into the lonely orca’s mental and physical health.

Kiska’s welfare is “severely compromised,” Visser argues in the One Voice report. She cites physical evidence of Kiska’s stereotypic behaviour: raw wounds have been observed on her tail flukes, Visser alleges, which she says are a result of Kiska repeatedly rubbing her fins and tail on rough surfaces of her tank.

The thrashing she describes was captured in October by One Voice representatives as well as during the summer via drone, an effort from animal-rights activists trying to bring attention to the orca’s situation. 

The drone operator shared some of the footage with Phil Demers, a former Marineland trainer turned critic, who has posted prolifically about the theme park since leaving his position in 2012. (Marineland sued him in 2013 for a number of allegations, including trespassing. In response, Demers launched a countersuit.) Demers shared the footage online. The Star has since spoken with the drone operator, one of whose videos shows Kiska’s repetitive counter-clockwise circuit of her enclosure. Another video, recorded in February, shows the killer whale floating in a corner of her tank. 

The Star has agreed not to name the drone operator due to their concern over reprisal for recording the videos. While the floating and circling behaviours may not seem unusual for an orca, they are still repetitive, experts note. Stereotypies are diverse, said Georgia Mason, a behavioural biologist at the University of Guelph who specializes in animal welfare. The behaviour can include head rocking or nodding, body rocking and pacing the same path in their enclosures. 

If animals start repeating “strange” behaviours, “it’s almost never a good sign,” Mason noted. Stereotypies, she explained, often develop out of an animal’s natural behaviour, which later devolves, becoming an odd repetition of what they would do in the wild. 

Visser has also visually observed Kiska’s teeth, though she has not physically examined them. Coloured a dark yellow and worn in some cases down to the gum, they appear to be “severely” damaged, Visser said in the report. Kiska does not need to forage for her food in a way that would wear down her teeth, she notes. In the centre of the teeth are holes, which could have appeared naturally or could have been drilled by park staff to assist in keeping them clean. The yellow stain, Visser explains, could be the result of an iodine-based antiseptic used to flush debris from the holes in Kiska’s teeth. 

It’s not possible to know exactly how the tooth wear or the holes appeared without access to Kiska’s health records. The Star requested an interview with a veterinarian at Marineland but received no direct response. Marineland has not responded to multiple requests for comment on the allegations about Kiska’s health from the Star, or to requests to be allowed access to the park outside of seasonal hours to observe Kiska in person.

Andrew Burns, a lawyer for the park, responded to the Star through a series of emails over a period of about one month. While he did not answer questions about the behaviours observed in Kiska, he responded to inquiries about Kiska’s teeth: “You provide no facts linking the condition of her teeth to any perceived health issue,” he wrote. “You and the Star make that negative and false assumption without factual basis. You may not like the look of her teeth but that does not establish anything.”

Burns also suggested that the experts who provided comment for this piece could not draw their conclusions from what the video clips showed. “Perhaps the videos are so short and so unclear none of (the experts) can make sufficient observations to provide a remotely credible opinion at all,” he wrote in an email. He questioned whether the videos were manipulated, saying Marineland could not respond to the content of the recordings without knowing who filmed or shared them. “Videos are nothing more than an electronic visual allegation,” Burns wrote.

Allegations of poor welfare for the animals in Marineland’s care have circulated for decades and were the topic of a 2012 whistleblower investigation by the Star. Marineland sued the Star over some of these articles, though the litigation did not progress. In 2016 and early 2017, Marineland was charged with 11 counts of animal cruelty, none of them relating to the park’s marine animals. All were later dropped, with Crown prosecutors saying at the time that there was no reasonable chance of conviction on most of the counts. 

In 2017, Lanny Cornell, who had been tasked with conducting a report into the medical conditions of Marineland’s wildlife, told the Senate committee that in his opinion, all of Marineland’s animals were in good health at the time. He explained that he conducted a visual examination of the animals and reviewed their medical records. In his testimony Cornell said he “didn’t see anything there that would require me to do any kind of physical examination on the animals because they all appeared to be in very good health.”

This year, two complaints about the theme park were levied to Chief Animal Welfare Inspector Paula Milne by Animal Justice Canada (AJC), an animal rights organization. In July, AJC brought forward a complaint calling for Milne’s agency to investigate if Marineland is “unlawfully subjecting Kiska to distress and suffering” given her solitude and an apparent shortage of enrichment activities and toys. The complaint, alongside a second complaint brought forward by AJC in October that questions the legality of ongoing dolphin performances at Marineland, looks to test the park’s practices against the Provincial Animal Welfare Services Act (PAWS) and amendments made to the Criminal Code in 2019.

At that time, the federal government passed the Ending the Captivity of Whales and Dolphins Act, which also made it an offence to export or import the animals, breed them, or use captive cetaceans for entertainment. (Through an exception, Marineland is allowed to keep the animals it already owns. However, it cannot breed more.)

A spokesperson for Ontario’s Ministry of the Solicitor General confirmed it has received AJC’s complaints about the welfare of the animals. “Given the ongoing inspection at Marineland, it would be inappropriate to provide further comment,” the spokesperson said. 

In an email Thursday, Niagara Regional Police confirmed they are investigating the park after receiving a complaint from a member of the public in late October. “An investigation has been commenced and is being conducted by detectives of our 2 District Niagara Falls detective office. As the investigation remains ongoing it would not be appropriate to provide further investigative details and potentially jeopardize the investigation,” a police spokesperson said. Marineland did not respond to questions about the police investigation.

In her report, Visser argues Marineland is violating sections of the PAWS Act. The government, she said, should be further enforcing legislation that already exists to protect Kiska’s welfare. “If those regulations were enforced, at least there would be minimum standards (of care) being met,” Visser said.

Marineland has often responded assertively to criticisms of its practices. In October 2017, the park sued the Ontario Society for the Prevention of Cruelty to Animals (OSPCA) seeking $21 million in damages and alleging the charity was targeting Marineland in an attempt to bolster its own funding and harm the park’s reputation.

Marineland did not respond to questions from the Star about the recent complaints or the ongoing inspections. But in an email to the Star, Burns, Marineland’s lawyer, wrote that allegations raised about Kiska’s welfare are “false and made in such a one-sided biased manner they lack any credibility.”

He questioned the integrity of the Star’s journalism and the credentials of those contacted for expert insight. “You state they are ‘independent’ when they are so obviously not it is laughable,” he wrote in an email. “The Star can declare a goat an ‘expert’, it doesn’t make it true.” In another, he writes it is clear the experts have an agenda which fits “the Star’s position on Marineland, and will say anything from one minute to the next.” 

“There is absolutely no pretence of objectivity or reporting of ‘news’ by you or the Star,” Burns wrote in one email to a reporter. In an email sent to the Star’s editor-in-chief, he argued, “This ‘story’ cannot be disguised as a matter of public interest that excuses you from printing the truth.”

“It is manufactured propaganda in agreement with and direct aid of the personal financial interests of animal rights activists.”

Burns clarified in a later email he was not speaking on behalf of Marineland.

Ingrid Visser’s interest in animals like Kiska goes back years. She studied New Zealand orcas for her PhD dissertation, and she has travelled to 46 facilities around the world that keep the mammals in captivity. Three of those trips, in 2015, 2017 and 2018, were to Marineland. There she observed Kiska, as well as the park’s five dolphins and its numerous beluga whales. In 2015, she prepared a report about Kiska’s health that was later presented to the Senate during the debate over Bill S-203.

At 7 a.m. in New Zealand on a recent Sunday, the Star spoke with Visser by video conference at her home in Tutukaka. The morning sun was streaming in her windows, casting a bright light over a work room decorated with several plush orca whales and a replica orca skull. She apologized for the state of the room – the dog had just been in and left its toys behind. 

Representatives from One Voice visited the park in October and approached Visser with their findings for review. She has studied the videos and photos they gathered and her own materials, which she compiled over several visits.

Visser doesn’t agree with the most dramatic responses to the videos of Kiska. In one video shared online by Phil Demers, the former Marineland trainer, Kiska appears to thrash near a glass barrier that offers spectators a view into her tank. It prompted speculation that she intentionally hits her head on the wall, but Visser stresses this may not be the case. In situations where cetaceans have hit their heads in the past, there is typically a loud cracking sound from the force of the blow. There could also be visible bruising or abrasions, which Visser said she hasn’t observed on Kiska. Even so, Visser believes the action is serious. The thrashing is “psychotic,” she said, and added “it’s stress-related. It’s purely from being kept in captivity.”

Kiska’s tank is small, Visser pointed out. Measurements taken on Google Earth show the enclosure to be approximately 40 metres by 20 metres excluding a shallow area that Visser says is not deep enough for the orca to comfortably swim. It’s unknown what the depth of the tank is, but Visser estimates it to be around nine metres. (Requests to confirm the size of Kiska’s tank went unaddressed in emailed responses from Burns.) Another, smaller tank is shared by Kiska and the belugas, but Visser has never documented them in the tank together. That tank measures about 21 metres by 17 metres and is connected to Kiska’s usual enclosure by a gate. Kiska doesn’t always have access to both sections, Visser notes.

Every day, Kiska completes her counter-clockwise circuit of the tank’s perimeter, always circling the same environment. In the wild, pods have been observed travelling between 100 and 220 kilometres each day. One hundred kilometres is the distance of the drive from Marineland to Oakville.

But Kiska’s small quarters aren’t Visser’s only concern. Visser suggests a thought exercise: picture the water drained out of the tank. Now, put a different animal in it, maybe a dog, and leave the tank empty of anything to look at. A few times a day, feed that dog a meal and pat it on the head. Then, leave it alone until the next day. 

“Would anybody think that was OK for any other species?” Visser asks. “I don’t think so.”

At the surface, Kiska’s tank is decorated with large rocks and lined by a red concrete ledge around the perimeter. Underwater, though, it’s a different story. It does not appear there are always toys for Kiska to play with, Visser writes in her report, or interesting parts of her enclosure that would offer extra enrichment to her daily routine. A few times a day, trainers come to Kiska and brush her, clean her teeth and pat her. Sometimes they practise “targeting,” a training technique that helps hold Kiska’s attention in one spot so they can guide her to certain areas when needed.

Neither Marineland nor Burns have addressed questions about the enclosure or enrichment activities provided to Kiska.

When animals in captivity live in “impoverished” environments without interesting physical or sensory stimulation, their well-being can suffer, said Mason, the biologist from the University of Guelph. Recently, Mason conducted research into parrots, which examined why some species were more prone to stereotypic behaviours in captivity. Though the team didn’t find that a change in the animal’s natural social structure was a risk factor, a parrot’s intelligence level seems to be – something they inferred from the size of the animal’s brain. 

The research by Mason and her team offers some evidence that intelligent animals experience something humans already know: Solving problems feels pretty good. Wild animals are constantly faced with complicated decisions and measuring risk, Mason said. Bringing those same animals into captivity means there’s no need to make decisions at all. 

At Marineland, Kiska probably doesn’t have to think, Mason said.

Killer whales have evolved to be highly intelligent animals who form lasting relationships among their own species, explained Deborah Giles, science and research director for Wild Orca, a not-for-profit organization that studies the southern resident killer whales which reside on the pacific coast near Washington, U.S. The mammals have long lives, with some female orcas observed living well into their 80s, Giles said.

In the wild, killer whales usually live in tight-knit matrilineal pods. In fish-eating populations, some groups of orcas can be found in pods of 20 or more. Except for rare cases such as that of Luna, a young orca who became separated from his mother and lived alone off the coast of Nootka Sound on Vancouver Island, orcas typically stay in the company of others throughout their lives.

Kiska’s solitary environment, Giles said, is the “antithesis of what these animals have evolved to experience.” Visser agreed, calling the solitary confinement Kiska experiences “one of the cruelest things they can do to her.”

When Kiska is observed hovering near the surface of her tank, she’s doing something you’d rarely see in wild orcas: staying still. Lingering in the same area for extended periods isn’t normal, Giles said. If they did, she adds, they could be susceptible to mosquito bites or sunburns. “A wild killer whale isn’t going to stay in one place long enough to get bitten by a mosquito,” she added.

In fact, Giles said, the cetaceans are almost always moving. This changes when they rest, she explained, when the orcas enter a “synchronized dive profile” and group close to one another near the water’s surface so they can rest more effectively. 

Unlike humans, orca brains don’t enter a full REM cycle. Instead, Giles explained, half of their brain enters a deep sleep, while the other stays alert. When they sleep in a group, a more alert “sentinel” orca helps the pod come up to the surface to breathe. The result, researchers believe, is a deeper sleep. “A solitary killer whale does not get that benefit,” Giles said. Isolation, then, could affect even an orca’s ability to sleep deeply.

On social media, the movement to “#FreeKiska” is gaining steam. Demers, the critic, said the difference this time is the accessibility of smartphones which allow anyone to record the animals in the park’s care. It’s not unusual, he said, for people to send him videos they’ve taken. This year, Demers decided to share some of them.

Demers said in a phone interview in October that the footage has gained “huge” traction. As of the time of this article’s publication, the footage of Kiska Demers posted on Twitter in September has been viewed almost 800,000 times. On YouTube, the videos have amassed close to 200,000 views. The message, Demers added, is clear: “They want her removed.” 

But is it feasible to #FreeKiska? Marineland has publicly opposed moving the orca, arguing that doing so could kill her. So what do you do with a 45-year-old killer whale?

Right now, a debate rages, with advocates for Kiska arguing she should be moved to a coastal sanctuary. One group fighting for the release of captive cetaceans has put forward plans for a seaside sanctuary and hopes to one day care for her in her natural habitat, but there is a long road ahead before it’s completed and fully approved. Burns, Marineland’s lawyer, argues that no such facility currently exists anywhere in the world. Certainly, at the moment there is no sanctuary in Canada that is ready to accommodate her.

Organizations such as the Whale Sanctuary Project (WSP) are looking to change that. Lori Marino, a neuroscientist who studies the brains of cetaceans and appeared in the documentary “Blackfish,” is a co-founder and president of the project. The sanctuary, she said, could offer a safe haven for Kiska. While the project is still in the permitting process and faces funding hurdles, several experts interviewed by the Star agreed it would be a best-case scenario for her if it can be completed.

On its website, a blog post authored by WSP executive director Charles Vinick says the organization is “confident that (by) working with Marineland or with the government or both, we can find a solution so that she can begin a new life in a natural environment.”

The project would see 100 acres sectioned off the coast of Nova Scotia for formerly captive cetaceans, with room for up to eight beluga whales and two or three orcas, Marino said. Whales at the sanctuary would not be reintegrated with the wild but cared for by an on-site veterinary team who would conduct health checks of the animals. The space would add an enrichment that captive cetaceans don’t currently have, she added: access to their natural habitat.

When asked to comment about a possible dialogue between Marineland and the WSP, the park did not respond. Marineland has previously expressed fear about moving Kiska, writing in a 2015 press release that moving her to a “substandard facility run by well-meaning but grossly unqualified extremists, is simply cruel to her, disorienting, and will, no doubt, kill her.” Marineland also flagged as a risk the presence of pathogens in the sea water and her “elderly” age. 

Proponents of the project have called for an independent and objective panel of scientists, veterinarians and animal welfare experts who can assess Kiska and see if she could endure a move to the coast. Marineland and other parks often move their animals around the world successfully, Giles, the wild orca researcher, points out. “What’s best for Kiska is still unknown, because a proper assessment and determination of what’s best for her has to be made by professionals outside of Marineland,” Demers said.

The Whale Sanctuary Project hopes to see the facility operational by the end of 2022 or in early 2023. A visitor’s centre for the future site opened in October.

In a perfect world, Visser said, Kiska should head to the sanctuary. There’s a problem, she added. This isn’t a perfect world.

To mark World News Day on September 28, 2022, the World News Day campaign is sharing stories that have had a significant social impact. This particular story, which was shared by The Toronto Star, was published on June 11, 2022. 

Police officers across Canada are violating people’s Charter rights with alarming frequency, leading to guilty people walking free and the trampling of rights of the innocent. 

In courtrooms across the country, judges are denouncing police officers for serious violations of the Charter of Rights and Freedoms – the bedrock of Canadian democracy that sets the boundaries of the state’s powers.

The officers’ flouting of the law is so serious that judges warn it threatens public confidence in the justice system. They’ve been forced to toss out key gun and drug evidence. Sometimes they throw out prosecutions altogether.

Guilty people are walking free. The rights of innocent people are being trampled. And these scathing rulings are coming down at least twice a week.

In Brantford, a small army of officers and a K-9 unit illegally detained and searched a suspect for drugs. The reason the officers gave for the pursuit and takedown? The cyclist was riding on the sidewalk without a light. The judge called the ruse “serious police misconduct” and tossed the drug evidence.

Toronto officers stood in a hospital operating room, without a warrant, while a doctor removed heroin from the rectum of an unconscious stabbing victim so they could seize it. Again, the judge threw out the drug evidence.

In Calgary, police trailed a 24-year-old suspect to a convenience store in 2019. Latef Tag El Din, who had a criminal record, was violating a house arrest order and had a loaded handgun hidden in his vest. As he made a break for the exit, an officer unleashed a police dog and tackled him to the floor. For hours after his arrest, officers ignored and mocked his repeated requests for medical treatment and one sang a song ridiculing his pleas for help. As blood seeped through the bandages covering the bite wounds on Tag El Din’s arm, officers taunted him with “laughter, sarcasm, song and judgment,” the judge said.

This “shocking” display, which was caught on audio and video, led the judge to stay charges that even the accused himself acknowledges would have otherwise likely resulted in his conviction.

“If they (the officers) would have followed the rules, I would probably still be in jail right now,” Tag El Din told Torstar.

From Vancouver to Iqaluit to St. John’s, N.L., a Torstar investigation has identified cases of police brutality, callousness and ignorance among officers who don’t appear to understand suspects’ rights. In multiple cities, after serious breaches were repeated by officers in successive cases, judges are upbraiding entire police forces for “systemic” Charter violations within their ranks.

Yet, in many of these cases, what happens in the courtroom never reaches the police station.

Const. Salomon Gutierrez sat in the witness box in October 2020, as the defence lawyer tore apart the prosecution’s case.

Seventeen months before, Gutierrez had arrested the accused during a traffic stop. He found cocaine, methamphetamine and cash. But it was becoming clear the officer didn’t have grounds to search the vehicle, a critical test that police must meet under the law to justify invading the privacy of suspects.

Now, the court was about to hear, it was not the first time the officer had disregarded the law and gutted the prosecution’s case.

The defence lawyer read aloud from a ruling in another case, stemming from an arrest in 2016, in which the judge had found Gutierrez and other officers arbitrarily detained the accused and failed to immediately inform him of his right to counsel.

This was also news to Gutierrez. He told the court it was the first he had heard of the 2018 ruling. He said that when he testified in that case, no one ever told him which way it went after he left the witness stand. No one told him his conduct concerned the judge and led to key evidence being excluded.

“I’m never told anything after I’m done testifying,” Gutierrez testified.

“So that if a judge finds that there’s been a violation of Charter rights, you aren’t notified?” the defence lawyer asked.

“That’s correct.”

Torstar, with the assistance of Western University’s law school, has identified more than 600 court rulings in the past decade where judges found that officers committed serious Charter violations. These rulings came down at a rate of two per week from 2017 to present.

Yet in most provinces and territories, there are no formal systems in place to ensure that police forces – or the officers themselves – are notified of these rulings. Even in the most egregious cases, consequences for the officers involved appear to be vanishingly rare.

Across the country, police forces say they trust that Crown attorneys will tell them when judges have found their officers have committed serious Charter violations. And when they hear of such cases, they say they investigate, and, if warranted, discipline the officers or provide additional training. A few weeks after a judge denounced Brantford police for the unlawful arrest of a cyclist for riding on the sidewalk, the courts notified the chief, prompting the service to conduct a “thorough review of the incident,” a spokesperson said, adding that no further action was taken.

However, in many instances, these informal lines of communication between the courts and police forces have broken or are non-existent. In the last seven years, judges have criticized nine police forces across Canada for displaying a pattern of Charter violating conduct. These serious breaches, repeated by officers in successive cases, include: performing unwarranted strip searches (Toronto, RCMP); storming into houses without good enough reasons (Prince Albert, Sask.); and filming partially naked female prisoners while they used the toilet (Edmonton).

The Toronto Police Service said it was unaware of 94 cases where judges found officers committed serious Charter breaches until Torstar told the force about the rulings. That is more than two-thirds of the cases the reporters identified where judges found Toronto cops violated the Charter.

Toronto is one of the few police services that disclosed whether they knew about the judgments. Most others refused to say.

The lack of information flowing to police services raises the question: “How could any action be taken? How could there be any accountability?” said Sunil Gurmukh, a human rights lawyer and adjunct professor at Western University’s faculty of law, who shared his case law research with the Star for this investigation. “It’s disturbing and alarming.”

Many police forces also refused to say what action, if any, they took to address the Charter-violating conduct of the officers. In some jurisdictions, police said strict privacy laws keep all disciplinary information secret. One lawyer who represents officers facing discipline said cases involving Charter violations are often handled informally – an internal process reserved for disciplinary matters that are considered not serious. Informal discipline cases are not made public.

Citing provincial privacy legislation, Calgary police said it could not provide any information on individual cases, nor could say whether the officers the judge called out for their “cruel” treatment of Tag El Din – including Det. Jennifer Doolan, who oversaw the arrest and transportation and displayed “utter indifference to the safety and well-being of the accused” – faced consequences. Reached by phone at the force’s guns and gangs unit, Doolan declined to comment.

Ottawa police did not respond to questions about  Gutierrez’s repeated Charter violations or whether the force was aware of the outcome in the 2020 drug case. Gutierrez also did not respond. A few weeks after Gutierrez took the stand, the prosecutor told the judge he had reviewed the officer’s testimony and acknowledged Gutierrez’s search of the vehicle, where the drugs were found, was illegal. He asked the court to toss the case.

The justice system’s failure to monitor and understand the scope of officers’ Charter violations alarms legal scholars, lawyers and judges. Torstar’s findings, they say, demonstrate the need for a formal notification system to alert police forces when their officers are found to have violated Charter rights – a critical first step in making them accountable to the public they serve.

Recently retired Ontario Court judge Melvyn Green said this information must reach police forces because officers are “the first line of constitutional protection in the area of legal rights.”

Of the more than 40 police forces whose officers’ Charter-violating conduct Torstar reviewed, 11 told Torstar they would support the creation of such a system. The forces in Toronto, Peel and Victoria were among them.

Waterloo chief Bryan Larkin, who is also president of the Canadian Association of Chiefs of Police, said the lack of information flowing from the courts to police forces about Charter violations is “a national issue.”

“I fundamentally support a system where police leaders are informed,” Larkin said. “We want to instill trust and confidence. We also want to put forth very strong criminal cases … We don’t want evidence excluded. We don’t want charges acquitted, because we have a responsibility to the victim. We have a responsibility to the community.”

Enshrined in 1982 under Pierre Trudeau’s government, the Charter protects the basic rights and freedoms considered essential to preserving our democracy. The Charter makes it unlawful for police to use brutality against us, randomly search our homes and detain us for no good reason.

Former prime minister Jean Chrétien, who helped draft the Charter as justice minister, has called it “the most profoundly democratic declaration in our history.”

Crucially, the Charter gave the courts the power to toss evidence or stay charges in cases where police seriously violate a suspect’s constitutional rights – a remedy intended to guard against undue state interference.

Charter breaches have a corrosive effect, particularly in Black and Indigenous communities where systemic racism has led to overrepresentation in the criminal justice system.

Gurmukh, who is leading research at Western University on hidden racial profiling in policing, said rights violations “negatively impact the physical and mental health of the victims” and “undermine public trust in policing – and ultimately public safety.”

“Frayed community relationships reduce the likelihood of civilians reporting crime, co-operating with police investigations and providing evidence in court,” he said.

Ontario Court Justice Marion Cohen, appointed to the bench in 1993, has spent most of her career as a judge in youth court in Toronto. She said police violations of young people’s rights are particularly serious because of their “vulnerability and the difficulties they would have in pursuing any sort of complaints process.”

“These are things that can affect their whole lives,” she said.

The cases Torstar identified represent only the tip of the iceberg of the serious Charter breaches that police commit, experts say.

Some possible serious Charter violations are never tested in court. This can be because the police don’t end up arresting the suspect or the accused accepts a plea deal or the Crown recognizes there was a significant violation and abandons the prosecution. These cases do not lead to a judge’s decision, so Torstar is unable to track them.

There are many more cases where the rulings are not reported.

Torstar only learned about the case of Emmanuel Awai through his lawyer, who provided a transcript of the judge’s oral ruling.

Awai, an unarmed Black man, was charged with impaired driving, failing to provide a breath sample, resisting police and failing to stop for police in August 2014. A civilian witness had seen Awai’s car parked a few feet away from train tracks, called police and said he was worried that Awai, who appeared to be asleep at the wheel, was impaired. When the officers first approached the car, Awai drove away, before stopping again.

At his 2016 trial, the court saw the police dash cam video. Officers swarm Awai’s car, smash his windows, and drag him out the passenger’s side, while hitting and kicking him. The judge said the officers “had valid concerns” and “were right to be cautious” of Awai because of his past offences and because he initially drove away. But the judge found the officers used excessive force against Awai, and that some tried to “embellish” his conduct in their testimony, which was inconsistent with the video, and that they didn’t get him adequate medical attention.

Awai was acquitted of all but one charge – refusing to submit a breath sample – which the judge stayed.

“The fact that there were grounds to arrest Mr. Awai does not absolve the police,” the judge concluded. “Their power, even at that point, is not unfettered.”

London police refused to say whether they knew about the rulings Torstar identified or say how, if at all, they addressed the conduct of the officers involved. Const. Angus Campbell, who was first on the scene and was among the officers that struck Awai, declined to comment. The other officers who were found to have violated Awai’s rights – Christopher Thomas, Marty Lessick, Matthew Haylor, Mark Mayea and Blair Corsaut – did not respond to questions from Torstar. In a statement of defence they filed in a civil case related to this incident, the officers said they “had reasonable grounds” to believe public safety was at risk, and acted reasonably based on what they knew at the time, including that Awai had “a previous history of violence and weapons offences.”

The Supreme Court of Canada has acknowledged that policing is dangerous, dynamic work. In a 2010 case involving the search of a suspected drug house, the judges stressed that in weighing the significance of Charter breaches, the court must strike a balance between protecting suspects’ rights and keeping the public safe. The role of the court is “not to become a Monday morning quarterback,” the ruling said.

However, as former judge Green observed, at least the “quarterback knows he lost the game.”

Without a system to alert police forces about their Charter-violating behaviour, “The officer may not have any idea, or may not know that it was because of him or her that the game was lost,” Green told Torstar in an interview.

While disciplining an officer is warranted in some cases, in many others forces should at least use these rulings “as a learning opportunity” for the officers, he said, so that mistakes aren’t repeated.

The 600 serious Charter breach violations Torstar analyzed are the most visible – almost all of them led to court rulings that were published online. The violations resulted in tossing evidence, a stay, acquittal or reduction in sentence. In some cases, officers’ failure to follow procedure compromised prosecutions. In others, the conduct was found to be in bad faith.

In Toronto, where the police service said it was unaware of 94 serious Charter breach cases Torstar brought to the force’s attention, Chief James Ramer said Torstar’s findings are “causing us to look introspectively, and go, ‘Are we missing something here?’”

In an interview, Ramer said he believes police are notified in the most egregious Charter breach cases through the processes currently in place. But he acknowledged that more can be done to keep these rulings from slipping through the cracks.

“If there’s a process that can be put in place that helps identify potential misconduct, so we’re all aware of it … I’m certainly open to that,” he said. “That’s the only way that we’re going to correct it, and it’s so essential to public trust and accountability.”

In Ontario, prosecutors must notify the Crown attorney’s office if they believe an officer has lied under oath or “engaged in criminal misconduct,” such as excessive use of force, a spokesperson for the ministry said. However, none of the provincial or  territorial justice ministries has a formal system in place to notify police services when officers have violated the Charter.

The informal approaches vary. In Saskatchewan, it’s “standard practice” for trial prosecutors to communicate judicial findings to police, a ministry spokesperson said. In Newfoundland and Labrador, courts are not expected to report such serious findings to police.

In Edmonton, no one seems eager to track the problem.

In 2020, a judge tossed key evidence against a drunk driver after finding Edmonton police officers unlawfully searched the suspect’s home and then failed to properly inform him of his right to a lawyer.

A few weeks after the ruling, defence lawyer Tom Engel, who was not involved in the case, sent the judgment to the police chief. An Edmonton police official told Engel the prosecutor hadn’t reached out to inform the chief of the decision.

Engel followed up with the police official a year later. Engel asked whether a formal policy requiring prosecutors to notify the police in such cases would be created.

“There is no policy,” the police official answered. “Nor do I believe one will be generated.”

A spokesperson for the Edmonton Police Service did not directly address questions about Engel’s exchange with the force’s lawyer, and refused to comment on 31 serious Charter breach cases involving its officers.

The spokesperson said the force has created “a feedback process” with prosecutors to notify the force of Charter violations. Edmonton is among a handful of police services that told Torstar they are informed when judges find their officers breached Charter rights through systems they have developed with the courts.

Engel said too many cases like the 2020 drunk driving ruling are going undetected.

“I shouldn’t be the gatekeeper.”

In Ottawa, defence lawyer Lawrence Greenspon also feels like a lone sentry, watching as Charter violations mount and go unaddressed.

When his clients sue police and its oversight board, his firm adds a clause to their statements of claim, alleging negligence for failing to implement policies to prevent further Charter violations and for failing to identify and fix “systemic” problems within the police service.

Torstar identified several rulings, stretching back to 2015, where judges have described the repeated failure of Ottawa police to properly inform suspects of their right to a lawyer as “systemic.” Most recently, in an impaired driving case in Ottawa in 2020, a judge threw out the breathalyzer evidence after the defence lawyer presented 15 previous decisions in which judges found that Ottawa police officers violated this Charter right.

Greenspon represented the driver in the 2020 drug trial in Ottawa where  Gutierrez told the court that he wasn’t notified about a prior Charter violation he’d committed. When Greenspon questioned Gutierrez, he was not surprised the officer was unaware of the outcome in the earlier Charter case.

“That is a serious gap in our justice system, and (it) shows both the judiciary and the Charter disrespect,” Greenspon said.

A spokesperson for the Ottawa Police Service said the local prosecutor’s office is supposed to alert them when the courts find officers’ conduct was egregious and may result in Charter violations. The spokesperson also said that the force monitors databases that publish court cases online.

“When the Service becomes aware of these matters, we review the case, determine the cause of the breach and take rectifying measures,” the spokesperson said, adding  they could not provide this information for any of the 22 cases Torstar identified.

In the 600 Charter cases Torstar reviewed, reporters found evidence that only a handful of officers faced serious professional consequences. They include four Peel officers – Const. Richard Rerrie, Const. Damian Savino, Const. Mihai Muresan and Sgt. Emanuel Pinheiro – who pleaded guilty to attempting to obstruct justice and resigned in 2019 for conduct a judge described as “shocking.” The officers were caught on tape stealing a statue of “Scarface” character Tony Montana from a storage locker belonging to an alleged drug dealer, and then lied about it on the stand.

Last year, a Toronto police disciplinary tribunal ordered that Const. Matthew Brewer resign or be fired. Brewer was found to have used “excessive force” against a suspect in a 2016 arrest. It was one of several incidents of “egregious” conduct that led to the rare dismissal, including a 2019 impaired driving conviction.

Brewer is suspended with pay while he appeals his firing. His lawyer David Butt said Brewer could not comment while the matter is before the Ontario Civilian Police Commission, where he argued that Brewer was suffering from post-traumatic stress disorder (PTSD) and alcohol abuse disorder at the time of the misconduct and has since been successfully rehabilitated.

Toronto police said officers had been informally disciplined in 15 unidentified cases. Thunder Bay also confirmed informal discipline in one case.

Those who seek to hold the police accountable for trampling their Charter rights can face a long and difficult road.

Ashton Boodoo’s chilling screams can be heard in a cellphone video of his 2015 arrest.

Montreal police said that concerns about Boodoo’s driving prompted them to tail him to the driveway of his home – a motive the judge would dismiss, concluding instead the officers “must have been after something else, or were simply fishing.” In the poorly lit driveway outside of Boodoo’s building, officers shattered his car window, repeatedly pepper-sprayed him in the face and struck his leg with a metal baton, the judge found.

“I was going to die – that was my feeling,” Boodoo said in an interview. 

“I’m embarrassed every time that video plays, because that was my scream for dear life.”

The officers charged him with impaired driving and obstructing a peace officer, among other alleged offences.

In 2018, a judge found the officers used excessive force, unlawfully detained Boodoo for nearly six hours and never gave him a chance to call a lawyer.

Instead of admitting their mistakes, the officers “attempted to mislead the court by giving testimony that, in the end, was rejected,” the judge wrote. A stay of proceedings, he concluded, “is the only remedy that sends a clear message that the kind of brutality used by police against Mr. Boodoo is unacceptable and will not be condoned by our courts.”

Boodoo is suing the Montreal police and two officers who violently arrested him – Steve Crevier and Olivier Lapointe – as well as a third officer who was supervising the jail where Boodoo was kept in an isolation cell. The police service said it and its officers declined to comment on the case citing ongoing litigation.

In a statement of defence filed in that litigation, a lawyer for the officers said Boodoo’s “suspicious if not dangerous” driving gave them reasonable grounds to arrest him. They allege Boodoo was “the architect of his own misfortune” and they struck him in the thigh with their hand and pepper sprayed him because he “resisted so much.”

The officers denied Boodoo’s allegations that he was racially profiled.

Montreal police would not say what it did to address the Charter-violating behaviour the judge documented in his scathing decision, or how it dealt with the Charter-violating conduct of officers in 10 other cases.

Six years after Boodoo’s arrest, Quebec’s independent police oversight commission laid professional misconduct charges against officers Crevier and Lapointe, alleging they abused their authority and flouted the law by repeatedly violating Boodoo’s rights.

A hearing is scheduled for January 2023.

To mark World News Day on September 28, 2022, the World News Day campaign is sharing stories that have had a significant social impact. This particular story, which was shared by the Toronto Star, was published on March 19, 2022. 

The new rules are so baffling, even key stakeholders say they don’t understand how it will work.

Though it dropped with little notice in the wider world, plunked down with scant fanfare in a late COVID spring, it was, nonetheless, a massive moment for many Ontario companies — not to mention Ontario cities, Ontario towns and anyone who owns an Ontario home, or just lives in one.

Ontario Regulation 391/21: Blue Box was published online on June 3, 2021. It laid out the terms by which Ontario’s entire curbside recycling regime would be overhauled over the next two years.

Under the current system, more than 240 Ontario municipalities run their own separate blue box programs, with the costs split between cities and the companies that produce and sell household plastics, metals, glass and printed paper. Under the new system, the companies themselves, including giants like McDonald’s, Unilever and Loblaws, will be responsible not just for the entire cost of the program, but for running it, too.

The new blue box regulation appeared following years of fevered lobbying by some of Ontario’s largest and most influential corporate interests. It set the stage for a change environmentalists hoped would drive a new era of better, more productive recycling in the province, and kicked off a fierce and barely concealed battle for hundreds of millions of dollars in annual collection and processing contracts.

It was, in other words, a big deal: for almost any company that sold or manufactured household products in Ontario; any company involved in the $2.8-billion Ontario waste management industry; and anyone interested in the environment or the economy of Ontario.

For Doug Ford’s government, the regulation was a defining piece of industrial and ecological policy, one that would touch the lives of almost every person in the province and set the stage for either a generation of household recycling gains in Ontario or several decades of costly and damaging stasis.

The stakes, then, could not have been higher, which is in part why so many players in the recycling world were completely baffled by what the government put out.

“I’ve been around this issue for a number of years,” said Jo-Anne St. Godard, executive director of the Circular Innovation Council (previously known at the Recycling Council of Ontario). “A lot of us have, and I remember when it first came out … we were calling each other going, ‘I don’t even know how to read this.’ ”

The idea behind Ontario’s big recycling change isn’t new or novel. Other jurisdictions, especially in Europe but more recently in North America too, have been off-loading recycling costs and responsibilities to paper and packaging producers for years.

But what the Ontario government came up with wasn’t built off any of those existing models, according to experts in environmental policy. Instead, critics say, it was a made-in-Ontario mishmash, a unique regime that even some with decades of experience in waste management and environmental consulting have trouble understanding.

“Don’t beat yourself up if you find it confusing. It’s confusing to people who’ve been in the industry for 30 years,” said Denis Goulet, president of Miller Waste Systems, a garbage and recycling company headquartered in Markham.

That confusion could have serious consequences. More than eight months after the regulation was published, industry players are still struggling to build a workable system off the government model. With the transition to the new regime set to begin in less than 16 months, and a provincial election campaign just weeks away, many are worried the various players won’t have enough time to get a functioning system off the ground before the summer of 2023, when the new regime is set to kick in in Toronto before rolling out across the province over the following two and a half years.

That kind of delay could be costly. It would force some municipalities to sign expensive contract extensions with existing suppliers (Toronto has already made provisions to extend its current contracts if necessary) or work out new deals in a tight market already constrained by supply chain backlogs. (The lead time to buy a new garbage and recycling truck, for example, is now somewhere between 18 months and two years, according to industry sources.)

But timetables and deadlines are only part of the story. The larger issue, according to many in the recycling sector, is that they don’t believe the Ford government’s blue box regulation as currently designed will be good for either companies in packaged good industries or for the environment.

The main goal of having a recycling system paid for and run by the companies that produce paper and packaging is simple: to get a better recycling system, one where less packaging ends up in landfills and more raw materials are repurposed and put back into the economy. But that only works, according to both environmentalists and industry experts, if the government lets the market do its job, by setting high standards and then getting out of the way.

Critics charge that the Ford government’s plan does neither. “The government did exactly what we were all fearful of them doing, which has been to be too prescriptive in the process,” said St. Godard.

The regulation sets recycling benchmarks that environmentalists say are far too lax to spur real change and lays out a process that some in the recycling sector believe is much too cumbersome to allow for market innovation to thrive.

“They’ve written a regulation, ostensibly to promote competition, that’s turned into the most anti-competitive recycling regulation I’ve ever seen,” said Usman Valiante, a private sector consultant with almost 30 years of experience in the recycling industry.

As a result, many in the recycling world now fear that Ontario will end up with a blue box system that splits the baby and throws out both halves, one that is neither progressive on environmental issues nor market driven on execution, a result that leaves some wondering why the industry was put through this long and expensive process in the first place.

“I’ve been involved in the waste system for more than 30 years and I’ve never seen anything as f-ed up as this,” said one senior industry official who was granted anonymity to speak frankly about an ongoing, commercially sensitive process. “I think the blue box is going to be a disaster at this point.”

The Star sent a detailed list of questions to Ontario Environment Minister David Piccini about the new blue box regulation, the lobbying that preceded it and the pushback from both industry and environmental groups about the new system. He answered none of them. Instead, a spokesperson for the Ministry of the Environment, Conservation and Parks, sent a long statement that read in part:

“We are working to deliver a blue box system that will make recycling easier by standardizing what goes in the blue box and expanding services to more communities across the province … We have made sure we have a process that ensures broad collaboration and brings all parties together in pursuit of the best possible recycling system, and one that will be a North American leader.”

The process that led to Ontario’s current blue box quagmire began decades ago, when the province launched the world’s first curbside recycling program, in Kitchener. The Kitchener trial proved a success and soon blue box programs were spreading across Ontario and the rest of the world.

The bones of the current system were laid down in 2002, when Ontario passed the Waste Diversion Act. Under the rules established that year, companies that produced packaging or printed paper for consumer use had to register with a provincial agency and pay into a fund that subsidized curbside recycling.

For the past 20 years, the foundation of that system has operated more or less unchanged. Today, Ontario municipalities are responsible for operating or contracting out curbside recycling services while the costs of those services are, in theory, split evenly between municipalities and producers. (In practice, the two sides have squabbled endlessly over how to calculate those costs.)

The 50/50 split represented Ontario’s first baby steps toward what’s known as Extended Producer Responsibility (EPR), a term coined by Swedish academic Thomas Lindhqvist in 1990. The philosophy behind EPR was that if you made packaging a cost for businesses, not just on the production side but on the disposal and recycling end, too, they would, over time, be incentivized to use less and more ecologically friendly packaging.

“If waste becomes an external cost of doing business, then you would treat that cost just like you would any other,” St. Godard said. “And through the competitive tensions of the marketplace, you would be incented to design better, and you may even — (in a) utopia — design it so that you get that product or package back and integrate it into your own production cycles.”

The current transition takes that idea and pushes it into hyperdrive. In 2016, the then Liberal government introduced the Waste-Free Ontario Act, which aimed to move the province to a full EPR system. The legislation established the principle, already standard in Europe, that producers should be fully responsible, not just for the costs of the curbside recycling system, but also for the operation of the system itself, including contracting, collection and processing.

What the Liberals did not do, however, was lay out exactly how that system was supposed to work in Ontario. Instead, in 2018, they lost to Doug Ford and the Progressive Conservatives and left the details up to the new government.

How exactly the Ford government came up with its own regulation is still something of a mystery, even to some who have been intimately involved in the blue box process. Most agree, however, that it involved some mix of ideology, influence and ignorance about how recycling policy works in the real world.

Beginning in 2018, producer groups and waste management companies started signing up a who’s who of well-connected lobbyists to push their competing versions of an ideal blue box regime. (“Ontario has very strict lobbying rules, which we take very seriously, and any insinuation otherwise is completely and totally inaccurate,” the ministry said in its statement.)

In return for paying for the system, the producer groups, which include many of the largest consumer-facing companies in the province, had a simple ask: they wanted full control over how it worked.

Environmental groups, meanwhile, wanted the province to set high benchmarks for recycled materials and strict reporting and auditing requirements for producers.

(Those pleas, according to environmentalists and some industry sources, were largely ignored. “This government has completely marginalized the environmental groups,” said another industry source who is still actively involved in the negotiations.)

Waste management companies, meanwhile, wanted a seat at the table and a regime that would allow them to protect their investments and existing infrastructure.

All of that sounds very complicated. And it is. But it’s not unprecedented. Many other jurisdictions have managed the transition to full producer responsibility. There was no need for Ontario to reinvent the wheel. And yet, that’s what the province did.

The new Ontario system laid out in the regulation published last June is unlike any other in the world, according to Duncan Bury, an Ontario consultant who has spent more than 25 years working on EPR. “This is a unique Ontario (he paused here to laugh) special case,” he said. “What they’ve developed is way more complicated than it needs to be, and I think there’s real worries about how this will actually roll out.”

The new regulation created a complex system whereby producers would sign up with competing Producer Responsibility Organizations (PROs), which would in turn create rules to divide recycling pickups among themselves geographically across the province and then contract out those pickups to waste management companies, all under a heavily proscriptive regime that ran some 36 printed pages and almost 17,000 words.

The Star spoke to almost a dozen executives and consultants who have worked on every side of this file. Almost to a person they expressed some confusion about the new rules. “This is the most bizarre approach to packaging regulation and EPR we’ve seen,” said St. Godard.

“It’s just so obtuse, you cannot understand what the hell they’re talking about,” added Bury.

It’s also, according to some at least, not particularly rigorous. “Clearly, the targets are not as robust as they should be on plastics, which is a critical issue to everybody,” Bury said. Nor are the reporting requirements strict enough, St. Godard believes.

“The focus has always been around what you do with the waste. There has been very little discussion around what really are the impacts to the environment and health when it comes to having these regulations in place,” said Fe de Leon, a researcher with the Canadian Environmental Law Association. “That’s, to me, almost like a second-tier discussion.”

Why did the regulation turn out this way? Some blame politics. Multiple sources familiar with the negotiations that led to the published version say they believe that direction on this issue was set at the top level, in the minister’s office, where staff were focused almost exclusively on having a system that had competition between PROs.

One private sector consultant said the government came in with an ideology, but without a real understanding of the complex regulatory and commercial environment at play.

It was that ideology, some believe, rather than a specific outcome, that drove the policy-making process. “The government at the time decided to go out with multiple PROs because they think it created competition,” said Patrick Dovigi, founder and CEO of Green For Life Environmental, Ontario’s largest waste management company. “That was in their mindset. I personally think the mistake that they made is there is no competition at the PRO level. All the multiple PROs dynamic does is create inefficiencies where all the costs really are.”

That government said that the new system has high targets backed by robust data reporting and auditing requirements and that it will encourage innovation and competition. “Ontario will soon be home to a leading blue box service that will better serve the taxpayer, have the highest waste diversion targets in North America, and promote innovations in recycling technologies and use of recycled materials,” the ministry said in its statement.

How soon, though, remains an open question. The regulation established a strict timetable for the creation of the PROs, the signing up of producers and the submission of the final rules. But the process since last June has been anything but smooth.

In July, GFL acquired the Canadian Stewardship Services Alliance (CSSA), a kind of non-profit clearing house on recycling policy founded by and funded by producers. In the same news release announcing the acquisition, Dovigi revealed that GFL was starting its own PRO, the Resource Recovery Alliance (RRA).

That decision sparked a major dispute between Dovigi and the large producers, many of whom believed that there is an inherent conflict in GFL, a waste management company, owning a PRO, which would in turn be contracting out business to waste management companies. (Producers had hoped for a regulation that barred that kind of vertical integration.)

Some also feared that GFL would use its market dominance to undercut other PROs on price and sign up a supermajority of producers which, under the regulation, would allow it to craft new allocation rules for the entire province.

Producers weren’t the only ones worried. “I think you need to be able to have separate church and state,” said St. Godard. “Producers need to be protected so that they have choice in the marketplace. That was the whole point of this. And if you have a monopoly service provider, or one that has a very big dominant position, the buyers of that service may find themselves only having one price-taker effectively.”

But Dovigi thinks all of that was overblown. “From our perspective, there’s no disagreement,” he said. “They think that we are the big bad guys that are going to get in and drive up costs significantly once we control the market. And it couldn’t be further from the truth.”

And if there’s anyone at risk of being bullied in a dispute between GFL and the major producers, Dovigi believes, it’s him. “This is David versus Goliath, right? I’m David. They’re Goliath,” he said. “People are making me out to be the bad guy, but I’m dealing with hundreds of billions of dollars of corporations on the other side and we’re just little GFL from Toronto.”

(GFL, the fourth largest waste management company in North America, and by far the largest in Ontario, has a market cap of $12.3 billion.)

In any case, by late fall it was clear that, for now at least, RRA and GFL didn’t have anywhere close to a majority of producers signed up. Instead, Circular Materials Ontario (CMO), a non-profit PRO owned by producers, seemed to have the edge.

Early in the new year, CMO was prepared to submit its own rules to the province (in collaboration with a third, much smaller PRO, Ryse Solutions, owned by Emterra, another waste management company). But then, everything got turned upside down.

On Jan. 13, the Resource Recovery Alliance, GFL’s wholly owned PRO, sent a letter to the province arguing that the blue box regulation was fatally flawed. The rule-making and allocation provisions were “complex and practically unworkable,” Nicole Willett, RRA’s vice-president, wrote. With the deadline for the rules fast approaching and a provincial election on the horizon, RRA was asking the province to rip open the existing regime and start over with something new.

In February, David Piccini, who became Ontario’s environment minister last June, signalled that he might be open to doing just that. Piccini summoned all three PROs to a private meeting where he announced a new, thinly sketched plan for a mediated consultation between the competing groups.

As of mid-March, that process is ongoing. The different PROs have submitted proposals to the mediator and to accounting firm KPMG and are awaiting direction from the minister with an update expected, according to a source familiar with the timetable, on March 22.

Time, meanwhile, is ticking away. The provincial campaign is expected to start no later than early May, leaving barely a year after the election before the blue box transition is set to begin.

“That’s why we’re nervous when we hear about another process that’s been sparked or led by the ministry,” St. Godard said. “And we don’t really understand why. As unique as this regulation is, the stakeholders have found a way to manage themselves within it. So why the extra process?”

In any case, for all their disputes, GFL and the major producers now agree on this much at least: the existing regulation, the one drawn up last June that so many stakeholders have found so utterly baffling, doesn’t work. They still disagree on the details. But both RRA and CMO have now asked the minister to rewrite the regulation, to reverse the central tenet calling for competing PROs, and to impose a single Producer Responsibility Organization to oversee the entire system.

“It’s just wrong,” said Dovigi. “The regulation needs to be fixed.”

For all the chopping and changing and moving around, one thing about the blue box process in Ontario has remained blissfully the same. As the Ford government scrambles to pump out perhaps the defining environmental policy of its first term, environmental groups say they’re still on the outside looking in. They haven’t been invited to the current round of consultations. They are not being asked to weigh in on any proposed regulatory change.

The new rules, when they are finally ironed out — if they are finally ironed out — will impact what every Ontarian puts in their blue bin. They will govern who picks up those bins, who pays for the system, and how many shopping bags, bottles and coffee cups end up getting recycled in Ontario and how many end up in a landfill. There are few provincial policies that touch so many in the province in such a tangible way. “So I’m not sure why they wouldn’t want to meet with every stakeholder,” said St. Godard.

But what’s remarkable about the reaction to Ontario’s blue box regulation is not that environmental advocates are opposed. Environmentalists have rarely seen eye to eye with the Ford government. It’s that so many other stakeholders, from so many different sectors, have been so put off too.

“It’s the right thing to do, but I’m sad to say, and in fairly typical Ontario fashion, it’s become overly complicated,” said Bury. “And, frankly, it’s a bit of a mess.”