Analysis: BMO Security Incident, 12-20-2019

This article concerns a security incident that occurred on 12-20-2019. An Indigenous man and his granddaughter went to the Bank of Montreal (BMO) in Vancouver, B.C, to open a bank account. Discrepancies in the account led the teller to call police, reporting an attempted fraud in progress. Both the man and his daughter were placed in restraints before it was determined that no fraud was committed.

Please take the time to review the initial story as it broke on CBC before reading this article.
My intention with this article is to shed light on this interaction from the perspective of security culture, deconstructing both the available evidence & the respective responses of both the police and the banks.

When deciding to act or intervene in a situation that may require a use of force or the infringement of another person’s civil liberties, it’s incumbent on the actor in question to explain exactly how their actions are proportional to the threat.

A “threat” is a potential cause for harm. Banks may face a variety of threats ranging from outright armed robbery to fraud or identity theft.

Risk is different from fraud: it’s the likelihood of a threat happening vs. the impact if it were to happen.

Using the aforementioned example, although the impact of an outright robbery may rank as high, the probability it will occur (in 2020 Vancouver) is likely low. In contrast, both the impact and probability of either fraud or identity theft are likely a top priority for the bank.

What is fraud according to Canadian law?

(1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

What facts of this situation might lead a reasonable person to believe that Johnson & his granddaughter were attempting to commit fraud?

– Johnson said the bank claimed there were anomalies with regard to their Indian status card numbers, and that his granddaughter was too young to have a status card. But children are eligible for status if one of their parents is registered, and the numbers are identical until the child reaches 16, at which point the last two digits change (Johnson’s granddaughter is 12).

– Johnson’s account had an anomalous lump sum payment of $30,000. Banks/credit unions are suspicious of these transactions because they resemble money laundering, and most banks/credit unions require a declaration to this effect. However Johnson, a member of the Heiltsuk nation, voluntarily disclosed that the $30,000 payment was the result of a settlement package from the Canadian government in June 2019.

Does BMO have an internal code of conduct to regulate how employees act towards members of the public?

To aid employees in making decisions on the job, BMO provides the “Doing What’s Right” decision-tree as a part of their internal code of conduct. According to BMO, “this model helps guide our decisions to ensure we adhere to BMO’s values, our Code of Conduct, BMO policies, and the law.” There are three potential answers to any given “question” an employee might be faced with:

a) Affirmative – “If the answer to all these questions is ‘Yes’, the decision to move forward is appropriate.”
b) Uncertain – Not Sure? Admit when you don’t have the answers. If you’re not sure, ask! Management is usually our first step to gain clarity or raise a concern.
C) Don’t proceed – If the answer is ‘No’, the action may have serious consequences. DO NOT proceed. Speak up, admit when you don’t have the answers and seek additional guidance if necessary.

In this circumstance, b would have been the appropriate response for the teller to act on. Given that there are no identifiable indicators of fraud – but that there are anomalies that the teller did not understand – the appropriate response is to raise a concern with management to gain clarity on the situation.

Unfortunately, we are left in the dark with regard to whether or not the teller themselves is to blame for the incorrect threat assessment (contradicting their internal decision-tree document), or if they were merely acting on the advice of a superior (appropriate use of the decision-tree to gain further counsel, but unfortunately yielding a deleterious outcome.

Given the facts of the situation, the legal definition of fraud, and the internal training document from BMO, would it have been reasonable to conclude that Johnson and/or his daughter was attempting to commit fraud on 12-20-2019?

No, it would not have been reasonable to conclude that Johnson was attempting to commit fraud on 12-20-2019.

Although the bank teller may have perceived anomalies with regard to either a) status card identification or b) payments in the bank account, the appropriate response to multiple anomalies when you or others are not under immediate risk of physical harm is to validate the information in question. It is on the onus of the bank to establish attempted fraud beyond a reasonable doubt before accusing a client.

The supposed urgency of this case is suspect; there exists no evidence to suggest that Johnson or his granddaughter were either an immediate risk to public safety or a flight risk.

Unfortunately, we have no idea whether or not this incident is the result of the actions of the teller or the orders of their superior that they acted on, and we aren’t privy to the extent of the internal training required of BMO employees with regard to these matters.

What we are privy to – and what is deeply troubling in this instance – is that BMO is a PAR (progressive Aboriginal relations) Gold Level business, certified by the Canadian Council on Aboriginal Relations. You can read an overview of the PAR certification requirements here – troubling to note that both TD bank (financier of numerous resource extraction projects that infringe on Indigenous sovereignty) and BC Hydro (executor of the Site C dam) are both certified as Gold Level PAR members. I’m concerned that while PAR may influence higher-level engagement between Canadian businesses and Indigenous citizens, it appears to have little influence on day-to-day engagements between bank staff and Indigenous citizens (a topic for another article).

How did BMO respond?

In a Facebook statement released on January 10th, BMO apologized for the incident and stated that:

 a) it was working with its “Indigenous employee resource group” and other Indigenous stakeholders to implement the Truth and Reconciliation Commission’s call to action to improve its corporate activities and policies.

b) it said it is also setting up an Indigenous Advisory Council in partnership with “several chiefs across Canada.”

Regarding point a, it’s not clear if BMO is referring to one of their Enterprise Resource Groups (ERGs – specifically, the “Sharing Circle”, or Indigenous-led group) or to another entity (are they creating an ad-hoc entity in response to this incident?).

In BMO’s words, “the 14 Enterprise Resource Groups (ERGs) at BMO are voluntary, employee-led groups to help foster an inclusive workplace by bringing together people with similar interests, values, or affinities… They are sources of invaluable insight into the needs of our diverse groups and provide counsel that informs the direction of many important programs and initiatives. And most importantly, they advocate for employees, creating safe spaces where everyone can feel comfortable speaking up and being themselves.”

My questions are:

a) How can the organization be held accountable for the behaviour of employees without foisting the responsibility for such training & education on the shoulders of a voluntary committee of Indigenous employees? I applaud that BMO even has such a group, but question the extent to which they’ve actively engaged with such a group to implement TRC recommendations prior to this incident. Also – how can you have such a group, be PAR Gold certified, and not have employee education about status cards? That is, frankly, pathetic.

b) What’s an “Indigenous Advisory Council”, what power will they hold, how will BMO be held accountable to their consulting/advice/recommendations, by when will this be established, and how will BMO continue to report on their obligations to address the very evident gap in training and education?

Beyond offering a conciliatory apology, it’s important that organizations such as BMO be held accountable to concretely amend their behaviour in light of these incidents. An apology isn’t enough.

Now let’s talk about the police response …

Chief Adam Palmer defended the VPD response to this incident, stating that, “the world that we live in as police officers, we are responding to things in real time, and we have to take the facts as we have them.” 

This may be the only point I’m willing to concede regarding the police conduct in this case – that the police acted on an incorrect threat assessment provided by the bank, leading them to believe that the incident was more serious than it was (including incorrect information about Johnson’s daughter, specifically that she was “South Asian” and “16” – although it’s beyond me to see how that does anything but mitigate the threat).

In this circumstance, BMO and/or the teller in question could be charged with a hybrid offence of mischief (misleading a police officer) – although the actus reus (the act) is present, I balk at assuming the mens rea (intention) was to deliberately deceive the police, but rather the result of prejudice (no less serious, but very different). As Palmer stated, “the bank was adamant that a fraud had been committed and they were providing information that led our officers to believe that.”

A reminder that small mistakes in threat assessments can have grave consequences.

Palmer claims it’s “it’s standard police procedure across Canada to take charge of the situation based on the available information, and that’s why 56-year-old Maxwell Johnson and his granddaughter were handcuffed.” This sentiment was echoed by VPD spokesperson Sgt. Aaron Roed, who stated, “police use cuffs to “ensure the safety of the detained/arrested party as well as the police members,” adding that officers are re-trained annually in the use of restraints.

“Using restraint devices is not uncommon when conducting investigations, even if the investigation involves a young person,” said Roed, adding that, “this can be done for officer safety in the absence of grounds to arrest or used during an arrest of an individual.”

But is this really the case? Was there a legitimate risk to either officer or subject safety that would justify the use of restraints in this case?

All police in Canada are held accountable to the National Use of Force framework, governing the conduct of peace officers with regard to use of force incidents. Officers are bound to use the lowest level of force needed to resolve a situation, beginning with communication and officer presence.

If the SOC (“subject of the complaint”) is cooperative, there is no prior criminal history, there is no flight risk, there are multiple officers attending to the incident, and the incident can be resolved by dialogue and officer presence… then what’s the rational for deploying restraints (handcuffs)?

There isn’t any. The situation could have been resolved without ANY use of force, let alone restraints (isn’t that what 9 months in the police academy + scenario training is supposed to teach you?),

Did racism play a role? Impossible to determine something such as this with any degree of objectivity, as the officers can simply claim plausible deniability. Or, as Palmer stated, that the attending officers were “of diverse backgrounds”… the tacit assumption being that it’s not possible for those officers to be prejudiced in this circumstance.

However, a cursory look at the history of policing in general (and Vancouver in particular in our case) reveals that this isn’t the first time the VPD has been faced with accusations of prejudice and racism (to which they have always denied or issued internal reports clearing their name).

Or just talk to some of your BIPOC friends and ask if they’d be willing to share their experiences with the VPD. Enlightening.

Since the story broke, the Office of the Police Complaints Commissioner (OPCC) has ordered an investigation into the conduct of the officers in question, stating they will, “carefully examine and assess the legal authority to detain, arrest and use restraining devices such as handcuffs on a 12-year-old girl.

The investigation is to be conducted by the Delta police department, with the final judgement resting on the West Vancouver Police Department (although the OPCC has the authority to have the decision reviewed by a retired judge). Punishment could range from additional training, a reduction in rank, or the most serious – full termination.

“Given the nature of this matter and the public comments of the Vancouver Police Department”, states the OPCC release, “the Commissioner has also determined that it is in the public interest the investigation be conducted by an agency other than the Vancouver Police Department.”

I applaud the commissioner for recognizing the potential for conflict of interest in this investigation (especially in light of Adam Palmer’s comments), but balk at their suggestion that oversight be given to Delta and West Vancouver police.

We don’t create systems so that we can “believe” that an investigation will be conducted impartially – we subordinate ourselves to those systems so that we don’t rely on goodwill & trust to self-investigate in the context of serious allegations of misconduct.

I do not have confidence that any police department can conduct an impartial investigation, regardless of whether the investigation concerns another detachment or municipality – and I urge the OPCC to reconsider this decision solely for the optics of having police departments investigate themselves. Every interaction with an officer is an opportunity to build or erode trust – and the VPD has a lot of ground to cover to build trust.

And even if officers are fired and others are trained – neither of which is a bad idea, as skeptical as I am they will occur – these solutions fail to address systemic bias in the policing system. What would the training look like? Is this a one-time seminar? Is training ongoing? What measures are in place to ensure compliance? Will police be held accountable to release details of the training? Or will they ignore repeated freedom-of-information requests, as they have in the past? Responsibility to answer such questions with integrity rests on the shoulders of the VPD.

Johnson has yet to hear directly from the VPD regarding the incident.

This article will be updated with respect to the pending investigation from the OPCC.

Update on 01/16/2020:

The Bank of Montreal formally apologized – nearly a month later. On January 16th, 2020, Erminia Johannson, group head of North American banking and U.S. business banking released an official statement by way of interview with Global & CKNW. (For the purposes of this post, we will refer to the BMO executive by her first name “Erminia” to avoid confusion)

This would be great, if BMO had made a genuine apology. Erminia was careful to couch her words, stating that, “our validation process identified a serious issue in the actual identification. This is where we should have stopped. I will keep repeating it and say our mistake was picking up the phone and calling the police.”

Again – what was the issue with regard to the status cards? In a follow-up interview, Johnson stated that, “we got our cards checked last week. Nothing’s wrong with my status card. The numbers all match up with what they have on file in Bella Bella and all the numbers are correct. One or two numbers of Tori’s were out of place.” …. as we’ve previously addressed in this article.

And then it gets worse.

Erminia doubled-down, stating that “BMO had conversations with “hundreds of Indigenous leaders, customers, employees and conducted a review of what took place, and determined the incident cannot be characterized as racist,” and pointed to their new Indigenous Advisory Council which includes 8 Indigenous leaders from across Canada. It remains to be seen what role this council will play in crafting policy and holding the bank accountable, and whether or not the offer is made out of genuine commitment to addressing internal cultural biases or a tokenizing gesture to placate public Indigenous opinion.

Erminia refused to answer questions with regard to the consequences that the teller in question may face, and of course, the Heiltsuk Nation has received no communication from either BMO or the VPD.

The optics of denying racism in a case such as this can only harm true efforts to reconcile between parties, and this statement is sufficiently ambiguous to absolve BMO of the worst part of this incident without committing to address systemic cultural attitudes towards Indigenous peoples in their organization.

I can understand how deeply uncomfortable this must be for BMO. You know what’s really uncomfortable? Racism and colonization. Which institution wants to admit that they have internal cultural biases that need to be rectified in order to move forward in the spirit of reconciliation… and which they evidently have not been addressing?

In addition to the advisory council, BMO will be instituting a new mandatory training program for senior staff focusing on the legacy of residential schools, treaties, and Indigenous rights. Questions remain the same regarding internal training undergone by the VPD: is the issue with senior staff, or tellers? What does this training look like? How does it translate to specific policies? Who is developing it? How will effectiveness be measured? Are there third-party audits of this program?

It remains to be seen whether or not these measures represent a genuine commitment to a renewed relationship, or a reactive gesture to placate public outrage. Time will tell.

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