Carding Tricks

Mayor John Tory's bungling forced the province to step up and rein in police over random street checks, but the new rules may not go far enough to end abuses

Anyone experiencing a case of déjà vu while reading the province’s widely anticipated regulations on police street checks released October 28 should not be overly concerned. Your mind is not playing tricks on you. 

That’s because, like an off-season TV rerun, the regulations, presented by Minister of Community Safety and Correctional Services Yasir Naqvi, stipulate several policies that we’ve all seen before. 

Yes, it seems like a long, winding game of rounders. Those pushing for action owe Mayor John Tory a lot – if not for his bungling, the province might not have taken over the file. Tory clearly didn’t have an appetite for the issue and forced the province’s hand. 

The new rules proposed by the province cover a lot of the same ground as the Toronto Police Services Board’s (TPSB) April 2014 policy on street checks, which former police chief Bill Blair refused to implement. Both aim to rein in the police practice of stopping and questioning people and entering their personal information into a database.

The TPSB policy required officers to remind members of the public of their right to walk away from voluntary street checks. So do the new regulations. The board’s policy also directed officers to issue receipts for any street checks that resulted in the collection and storing of personal data. The province’s regs go further in this area, attaching a complaints process to the receipt system.

The new regulations require police to monitor street checks closely over multiple years and place strict limits on all data retention. They also outline misconduct guidelines for officers who ignore the regulations. 

But the biggest change relates to the power of police services boards to implement the regulations. 

While the TPSB failed miserably to get Blair to comply with its policy, new police Chief Mark Saunders won’t have the same wriggle room. Unlike the board’s policy, the province’s regulations become law once finalized.

Former TPSB chair Alok Mukherjee, who fought a very public and at times nasty battle with an obstinate Blair over carding reform – he ultimately resigned over it – says the new regulations are a welcome vindication of the TPSB’s efforts to deal with carding under his leadership. 

“We were on the right path all along,” he says. “Our problem wasn’t that we didn’t know if we had the right policy. It was that we didn’t have the necessary powers to implement it.”

Asked whether the province took too long to get involved in the issue, Mukherjee, who was a provincial appointee to the TPSB, says there’s a history of provincial governments backing off on police matters. 

Indeed, there hasn’t been a detailed look at policing in the province and the power of police boards since the Police Services Act was passed in 1990.

“When we came out with the Morden report [on G20 police response], the government’s position was to take no position on its recommendations,” says Mukherjee. “Now I think this minister [Naqvi] gets it. This is an opportunity to deal with racial discrimination in policing, of which carding is just one manifestation.”

Despite the progressive intent of the regulations, which are reportedly the first of their kind in North America, some critics say they’re still open to wide interpretation. They point to several notwithstanding clauses.

For example, officers who are in the process of investigating “a particular offence” will be exempt from the regulations. Critics worry this clause could be abused to circumvent the regulations. 

Similarly, officers who obtain information through “casual” or “informal” encounters with the public won’t be held to the new rules. How “casual” or “informal” are defined is not clear.

Rodney Diverlus of Black Lives Matter T.O. says he’s disappointed the province didn’t take a stand on what his movement believes is a long-standing problem of anti-black racism in policing and ban street checks altogether. 

“After decades of speaking out about these issues, we’re way beyond band-aid solutions,” he says. “If it’s taken this long just to get to these regulations, how long will it take for the government to deliver real change?”

Official word from the Ontario Association of Chiefs of Police, unlike its previous statements threatening litigation if the regulations infringed on police powers, has been conciliatory this time around. 

The group says in a statement on the OACP website that it is “committed to ensuring that our officers conduct themselves according to the regulations when they are finalized and that our police services policies adhere to the new regulatory requirements.”

Toronto Police Association president Mike McCormack is more pointed. He describes the new regulations as a “social experiment” whose ultimate value will be determined over time, though he thinks “criminals” are the big winners.

As for the Toronto Police Service, spokesperson Mark Pugash says the regulations are not inconsistent with statements Chief Saunders made about carding reform shortly after he took over.

The province has given the public 45 days to review and respond to the draft regulations. Not surprisingly, several community groups have already signalled that they’ll be requesting that they be tightened. But although there are clearly important details to work out, most advocates view the regulations as a step in the right direction.

Anthony Morgan of the African Canadian Legal Clinic, who’s been openly critical of the province’s street-checks consultations, says the new regulations will help restrict and guide the enormous discretionary powers of police. But he thinks people need to be realistic about how much the regulations can eliminate abuses. 

“Perhaps people have put too much hope in these specific regulations,” he says. “We know we have a lot more work to do on racial profiling, police brutality and other important matters… but this moves us forward.”

The arrival of new regulations on carding can be rightly viewed as a hard-won achievement born of community struggle, but in a strange way, they are at least in part a gift from Mayor Tory.

His hapless handling of the file pushed the carding issue right onto the legislative table, one of those rare moments when politics results in a tangible win for affected communities.

Neil Price is executive director of a non-profit consultancy in Toronto and author of the Community Assessment Of Police Practices report on carding. | @nowtoronto

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