Written Submission to the Ministry of Community Safety and Correctional Services - Carding

Background

1 Whatever label you choose – street checks, community contacts, or carding[1] – the practice of police officers arbitrarily stopping individuals on the street, requesting personal identification and information, and maintaining a record of the encounter for possible future use, has increasingly come under scrutiny. Some police officials maintain that street checks may help solve and prevent crime, keeping communities safe and secure. However, critics condemn the practice as unconstitutional, discriminatory (it disproportionately impacts racialized and marginalized individuals), and destructive of community relations with and confidence in police.

2I have always thought the practice of street checking was wrong and illegal and said as much when asked about it on July 28, 2015, during my press conference for the release of my latest Annual Report. In my view, street checking is similar to what citizens experienced during the G20 summit in Toronto in June 2010. I observed, after investigating circumstances relating to that event, that the police detention of thousands of citizens on the streets of Toronto under constitutionally suspect legislation represented a massive compromise of civil rights.[2]

3The growing demand for reform of street checking practices this summer led the Ministry of Community Safety and Correctional Services to announce on July 30, 2015, that it was launching a public consultation to ensure that police interactions with the public are without bias, consistent, and carried out in a manner that promotes public confidence. According to the Ministry, a draft regulation with guidelines for street checks will be posted after the consultation process is complete.

 

The Bottom Line 

4I met with the Deputy Minister and Senior Officials from the Ministry on August 12, 2015, to provide my perspective as part of this consultation. In my view, this is the bottom line:

• Stopping citizens without an objective and reasonable basis for believing that they may be implicated in a recent or ongoing criminal offence, or where there are reasonable and probable grounds to arrest them, is unconstitutional – it’s a form of arbitrary detention contrary to section 9 of the Canadian Charter of Rights and Freedoms;

• The purported benefit of street checks – their effectiveness as a policing tool to improve public safety – does not meet the reasonable limits test established by section 1 of the Charter; and

• The detrimental effects of street checks on individuals and the community are simply too great to justify this practice.

5If the government persists in its attempt to permit and regulate street checks, significant safeguards will be required to minimize the infringement on individual civil rights and salvage community confidence in policing in the province.

6In this submission, I review the law on arbitrary detention and how it applies to street checks, and respond to the Ministry’s consultation, including putting forward several recommendations.

The Right Not to Be Arbitrarily Detained: Balancing Crime Prevention and Civil Rights

7It is important to establish upfront that criticism of street checks is not an attempt to undermine policing best practices. Police officers are generally entitled to obtain information from various sources. They are free to gather intelligence and mine the collected information for critical patterns and links, in order to assist in solving and preventing crimes. However, in democratic societies like ours, there are restrictions on how far police can go to get information. While unfettered police access to everyone’s homes and personal information would likely help solve crimes and improve public safety, Canadians recognize that police powers should be subject to reasonable limits. That’s why we have the Charter of Rights and Freedoms.

8Under section 9 of the Charter, everyone has the right not to be arbitrarily detained and police officers must respect that right when attempting to collect information.
 

What does it mean to be detained?

9In Canada, individuals enjoy the right to walk down public streets unimpeded.[3] Police officers have no legal authority to stop citizens, and anyone asked to stop by a police officer is free to walk away. However, the circumstances change when a detention occurs. Detention means someone’s liberty is restricted through compulsion or coercion.[4] Police officers have the legal authority to detain an individual if they believe, based on reasonable suspicion, that the person may be implicated in a recent or ongoing criminal offence, or where there are reasonable and probable grounds to arrest them.[5] A police hunch that someone is acting suspiciously does not amount to objective grounds to justify detention.[6] When people are detained, they have the right to be told why, and the right to legal counsel.[7]

What if the individual agrees to stop?

10If someone voluntarily co-operates with police, there is no detention.[8] However, the courts have recognized that social dynamics and power imbalances exist, and sometimes an individual may experience psychological detention when stopped and questioned by police.[9] The courts consider several factors when determining whether a psychological detention has occurred, such as whether the person reasonably perceived that he or she was singled out for focused investigation, the nature of the police conduct (including the language used, location, and duration of the encounter), as well as the age, physical stature, minority status and level of sophistication of the person being questioned.[10]

11Unless there is explicit and informed consent to participate in a street check, it is reasonable to assume that many of those stopped and questioned by police experience psychological detention. A recent survey of residents from one area of Toronto, funded by the Toronto Police Services Board, found that 69.5% of survey participants who were subjected to street checks did not feel free to walk away.[11]

When is detention arbitrary?

12A detention, whether physical or psychological, is arbitrary if there are no criteria, express or implied, which govern its exercise.[12] At present, there are no uniform criteria applying across the province concerning street checks, and individual police practices are often unofficial, unclear, and inconsistent. Although the Toronto Police Services Board’s most recent policy on community contacts attempts to instill more controls around the practice, it has still not yet been operationalized.

13In essence, a street check – unless it represents an authorized detention under the current law – is a form of arbitrary and illegal detention.

Conflicting street check examples

14In Toronto, where street checks, locally known as “carding,” have been routinely used for years, those stopped are typically asked to show identification, and the information recorded by police includes name, age, gender, race, skin colour, address, physical features and the names of associates.[13] While the Toronto Police Services Board claims that this practice has resulted in the successful conclusion of at least 110 significant investigations,[14] no substantive evidence or details have so far been offered to support this assertion. It’s therefore unsurprising that Toronto’s street check practices have recently become the focus of a constitutional challenge.[15]

15 The Toronto Police Services Board’s community contacts policy was amended after vocal criticism of police street check practices. The new policy provides that individuals may be stopped and questioned only if this would serve a “valid public safety purpose,” including investigating a specific offence or series of offences, preventing a specific offence, and ensuring the community member who is the subject of the contact is not at risk.[16] Full implementation of the policy is awaiting procedures, which are the responsibility of the Chief of the Toronto Police Service. However, the policy provides some guidance for this task, for instance, the procedures must ensure that community members know as much as possible in the circumstances about their right to leave and the reason for the contact.[17]

16In Ottawa, the unofficial procedure is to only conduct street checks when there is suspected criminal activity. In contrast to the view of Toronto police, the Ottawa Police Service sees no value in random street checks. In a recent review, it was noted:

Random Street Checks are not acceptable and the OPS believes they lead to the collection of information not useful in solving or preventing crime.[18]

17 The Regional Municipality of Peel Police Services Board is currently undertaking a full public review of the practice of street checks. It has been reported in the media that the Peel police follow a directive allowing for street checks relating to:

• The search for a suspect(s) as a result of an offence in which a street interview may assist in identifying culprits;

• An area identified for activity in contravention of a criminal, provincial or municipal statute;

• A check of individuals under strict conditions as a result of any legal order;

• Information provided to officers at the start of their shift in relation to wanted persons, major incidents and investigations, and crime analyst alert information on crime trends;

• Temporary detention of a driver of a vehicle to investigate a possible crime or contravention of a provincial or federal statute; and

• Suspicious behaviour that can be categorized as unusual or out of place.[19]

18The Peel Regional Police Chief has stated publicly that the service’s street checks aren’t random, don’t target individual groups, and that all officers must follow policy.[20] She has also observed that the purpose of street checks is “[t]o record police interactions with individuals who are seen in circumstances that are suspicious.”[21]

19Interestingly, all three policies contemplate street checks occurring in contravention of the legal requirements for authorized detention. They permit officers to conduct street checks without the need for reasonable suspicion that the individual stopped might be implicated in a recent or ongoing criminal offence.

Can detention be authorized through regulation?

20According to section 1 of the Charter, the right to be free from arbitrary detention is subjectonly to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.[22] At present, street checking is not a legislated limit on a Charter right, but it will be if the province issues a regulation prescribing the circumstances in which street checks can be authorized. Even then, the regulation will still have to pass constitutional muster. Given the evidence so far, it is questionable whether it will be salvageable as a demonstrably justified restriction on civil liberties.

21In assessing the constitutionality of an infringement of Charter rights, the courts review:

1. The importance of the objective;

2. The rational connection between the proposed limit and the objective;

3. Whether the least drastic means has been employed to accomplish the objective; and

4. Proportionality: the effects of the limit must be proportional to the objective of the restriction on the right.[23]

22Applying these considerations, street checking does not measure up to constitutional standards.

No rational connection

23Although street checks might fulfill an important social objective – ensuring public safety – it’s unclear how arbitrarily detaining citizens is rationally connected to this goal. Courts typically require statistical analysis and independent studies to establish a rational connection between a legislative objective and an infringement of a Charter right.[24] So far, the available information about the public safety potential of street checks has been purely subjective and anecdotal. There are no independent studies or statistical analyses confirming that this police tool has been of significant benefit in solving or preventing crimes. In addition, as noted earlier, two major police services, in Ottawa and Toronto, hold conflicting views on the effectiveness of random street checks in improving public safety.

Too Drastic a measure

24 Street checking is more than a minor inconvenience. For instance, in Toronto, it can take 10 minutes or more to ask questions and record the personal information that is usually collected. Police have various methods at their disposal to obtain information in less intrusive ways, including the ability to engage in fully consensual and voluntary exchanges.

Not proportionate

25The detrimental effects of street checks are also disproportional to any purported benefits that can be derived from them. Street checks can have real and lasting negative impact on the lives of those whose information has been collected. Individuals who have been subjected to this process have convincingly described the loss of dignity and the fear associated with these encounters with police.[25] The same Toronto survey cited earlier also found that 48.2% of those who had been carded reported that the police officer spoke to them disrespectfully,[26] and 38.7% of the same group reported that they were “surrounded and intimidated by police”.[27] Many also experienced other negative emotions, such as anxiety and depression, after being carded.[28]

26In Toronto, routine background checks can reveal that a person was the subject of a street check, even if the circumstances surrounding the interaction were entirely benign.[29] For instance, it has been suggested that a parent could be prohibited from volunteering at a school or obtaining a job if a background check reveals that a community safety note was entered against his or her name.[30] The Toronto Police Service also admits that it has used information obtained through street checks to “screen out” its own job applicants.[31] Although the government’s proposed Bill 113, the Police Record Checks Reform Act, 2015, if passed, will place some controls on disclosure of information obtained from street checks, the benefits of collecting and retaining this information remain highly questionable.

Threat to Community Confidence in Policing

27 Unfortunately, the value of street checking as a policing tool pales in comparison to the reputational harm that inevitably accompanies it. The Toronto Police Service recently recognized that it risks erosion of public confidence when its operational practices result, intentionally or unintentionally, in the alienation of individuals or groups within society.[32] Stakeholder groups, the media and affected individuals have argued passionately and persuasively that the practice creates more problems than it solves and presents a major obstacle to building community trust in police and encouraging co-operation with criminal investigations.[33] Toronto survey results also support that individuals who have been subjected to street checks are less likely to call the police when problems arise, and more likely to distrust them.[34]

Answering the Ministry’s Questions on Street Checks