Despite the overwhelming public outcry over the police practice of street checks known as carding, Ontario Minister of Community Safety and Correctional Services Yasir Naqvi has only committed to “regulate” them.
In a news release announcing new regulations under the Collection Of Identifying Information In Certain Circumstances – Prohibition And Duties, the minister states that Ontario is “banning the arbitrary and race-based collection of identifying information by police.”
That should mean police officers cannot arbitrarily approach and detain an individual unless there is a police investigation going on and that person is either a suspect or a person of interest relevant to that investigation. But that is not the case.
The government’s own statement goes on to reveal the glaring dichotomy in the new rules: “The regulation prohibiting carding also sets out, for the first time in Ontario’s history, clear and consistent rules for a range of voluntary police-public interactions where police are seeking to collect identifying information. These rules will ensure that those interactions are conducted without bias or discrimination, and done in a manner that promotes public confidence and keeps Ontario communities safe,” it reads.
Banning means it’s over. Something that doesn’t exist cannot be regulated.
It’s ludicrous to suggest that people in racialized and marginalized communities will initiate “voluntary police-public interactions” in which personal information offered may end up stored in a police database.
This smacks of American horrors like president Richard Nixon’s Huston Plan, which called on police, FBI, CIA and other military entities to gather intelligence on civil rights, black power, anti-war, left-wing and counterculture activists in order to facilitate their detention.
Though Nixon was compelled to stop implementation of the Huston Plan, the data gathered was never destroyed. As Edward Snowden has demonstrated, the creation and maintenance of privacy-negating information databases by the state without scrutiny or regulation is the gravest danger to democracy.
A massive investigation by the Toronto Star and the book Racial Profiling In Canada: Challenging The Myth Of “A Few Bad Apples,” by Carol Tator and Frances Henry, reveal that carding in Ontario and across Canada is nothing but racial profiling. It enables the police to arbitrarily stop people in circumstances that have nothing to do with ongoing investigations or individual arrests.
That, on its face, is an overt violation of the rights of people not to be arbitrarily detained and to be secure against unreasonable search and seizure. If this language is familiar, it’s because it comes straight from the Canadian Charter Of Rights And Freedoms.
Before patriation of the Canadian Constitution, the extent to which individual rights in Canada were trumped by the Crown, and therefore the police, was debatable.
But as Gerard Eugene Mitchell, a former chief justice of Prince Edward Island and now police commissioner for that province, said in May 2013 at the Canadian Association for Civilian Oversight of Law Enforcement conference, the Charter became the new sheriff in town.
“It changed our form of government to one in which individual rights are paramount. These rights impose significant limits and new duties on police. As a result, police are now held to account for the way they conduct investigations, gather evidence and treat suspects as never before. To comply with Charter standards, police need to be better educated, more disciplined and more professional than ever.”
Further, in the 2004 decision R v Mann, Justice Frank Iacobucci wrote for the majority of the Supreme Court of Canada: “At a minimum, individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention. Investigative detentions do not impose an obligation on the detained individual to answer questions posed by the police.
“Where a police officer has reasonable grounds to believe that his safety or the safety of others is at risk, the officer may engage in a protective pat-down search of the detained individual. The investigative detention and protective search power must be distinguished from an arrest and the incidental power to search on arrest.”
The new rules will do little to make errant police behaviour extinct. Police operate with a warped sense of entitlement, and they have no entitlement. Police are public servants and enjoy the privilege of service.
Former Toronto police chief Bill Blair, now MP for Scarborough Southwest in Prime Minister Justin Trudeau’s government, knows the problems inherent in carding and the negative effects it has on police-black-community relations. While still chief, he ordered carding suspended indefinitely in January 2015.
In his old beat of marginalized Regent Park, he attempted to reach out to residents in a manner consistent with the realization that the police exist to serve the community. He is now the parliamentary secretary to the minister of justice, the Honourable Jody Wilson-Raybould, who is herself, as an indigenous Canadian, a member of a historically marginalized community.
The province’s regs are scheduled to go into January 1, 2017. If there was ever a time for federal legislation to ban carding and destroy carding’s database, it is now.
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