A look at the ridiculous loopholes in the proposed rules around police carding

The province says it wants to ban carding, but activists worry new regulations would barely change a thing


On Monday, December 7, civil libertarians and anti-racist activists once again held a press conference at City Hall to demand that Ontario police forces respect constitutional rights that are, in theory, already guaranteed.

This time, however, the ever-swelling coalition of groups against the police practice of carding – including the Ontario Human Rights Commission, the African Canadian Legal Clinic and the Canadian Civil Liberties Association (CCLA) – have a somewhat different goal. After successfully persuading Mayor John Tory and then the provincial government of the need to end carding, they’re now deeply concerned about the follow-through.

On October 28, Ontario’s Ministry of Community Safety and Correctional Services released a draft regulation that would, according to the accompanying news release, “prohibit the random and arbitrary collection of identifying information by police, referred to as carding or street checks.” And on the surface, the proposed rules appear to do just that. 

But a closer reading shows that the regulation, as written, is shot through with enough loopholes that a determined police force would hardly feel compelled to adjust its behaviour. The coalition argues that, if adopted in its current state, the regulation would have minimal impact on the status quo while leaving a mistaken impression that the problem has been solved.

“It is important,” said Knia Singh, the law student challenging carding’s constitutionality in the courts, “that the gains we’ve made to this point are not thrown away by insufficient regulation with a limited scope and numerous exemptions.”

Drawing on the coalition’s extensive joint response to the draft [pdf], here’s a breakdown of some of the problems with the law as proposed:

NARROW SCOPE 

The regulation would govern police interactions that involve officers trying to collect identifying information from individuals. But it would apply only in certain circumstances, such as when an officer is conducting a “general investigation into offences that might be committed in the future” or “for criminal intelligence purposes, about individuals known or reasonably suspected to be engaged in illegal activities.”

Other circumstances are specifically exempt, such as when a person is “legally required to provide the information to a police officer” or if the officer is “investigating a particular offence.”

All of which sounds reasonable enough until you start picking it apart.

If the regulation doesn’t apply when “investigating a particular offence,” then an officer or entire unit could potentially sidestep all the new rules simply by citing a specific crime that they’re trying to solve. Or, if the regulation covers the collection of information for criminal intelligence purposes involving people known or suspected to be engaged in illegal activities, then it follows that it wouldn’t cover the collection of information about people not known or suspected of illegal activities.

And if it doesn’t pertain to instances when people are legally compelled to provide ID to police officers, then it wouldn’t govern stops of people who are driving.

Singh told the press conference that of the 11 times he’s been carded, the regulation would have prohibited only one of them. “Unfortunately, because [of] me being a black person in the city, I’m regularly targeted while driving,” he explained. “And I’m stopped for no traffic offence, just a general investigation.”

The signatories to the joint response would much prefer that the regulation “apply generally in the course of an officer’s duties” rather than in specific, enumerated circumstances.

ARBITRARY DEFINITION OF “ARBITRARY”

Under the regulations, an officer couldn’t collect someone’s information if a stop is “arbitrary” or at least partly based on race. But again, there are exceptions.

If an officer is looking for a specific individual and “being within the racialized group forms part of a credible description of the particular individual” – say, police are on the lookout for a “young black male” – then stopping a person because of race would be allowed. 

For a stop not to be “arbitrary,” an officer would simply have to believe that a person’s info might be relevant to gathering intelligence on known suspects or inquiring into “suspicious activities.”

Among other problems, this sets a lower threshold than the “reasonable suspicion” standard set out by the Charter, which guarantees that “everyone has the right to be secure against unreasonable search or seizure.” 

The joint response counsels the ministry to turn this around, so that non-arrest stops would be permitted only in certain listed scenarios, such as when an officer is investigating a specific criminal offence and has reasonable suspicion that the person is implicated.

“If we leave [the] language broad,” warned the CCLA’s Noa Mendelsohn Aviv, “if we just say ‘end carding and arbitrary stops,’ and there are no specific guidance and details provided, then we are left with the interpretation of police officers – who unfortunately have a long-standing tradition and culture of stopping somebody because they have a hunch or a suspicion or because something doesn’t look right. And what that means in reality is that young black men, young racialized people, young indigenous people, homeless [people] and so forth are being stopped for no reason and having interactions” that are at the very least a violation of their fundamental rights.

INFORMING PEOPLE OF ONLY SOME OF THEIR RIGHTS

The draft says that an officer attempting to collect identifying info shall “inform the individual that he or she is not required to remain in the presence of the officer,” that is, that they’re free to leave. 

But the joint response notes that it’d be helpful if the regulation explicitly stated that such an advisory must be delivered at the start of an interaction. And as well as informing people about their right to walk away, officers should be required to tell them it’s also their right to not answer any questions.

BROKEN RECORD-KEEPING

The draft says that officers shall give receipts for encounters with the public that include the officer’s name and badge number, a record of the time and date of the stop, and information about how to contact the Office of the Independent Police Review Director (OIPRD) for complaint purposes.

But such a document would be handed out only if it wouldn’t be “unreasonable in the circumstances to do so.” The joint response thinks that’s an overly broad exemption, which should instead be limited to times when a person has walked away or doesn’t want the receipt, or if there’s “information that is sensitive or classified.” They also think the document should clearly outline the reason for the stop and include contact info for the Human Rights Tribunal of Ontario alongside that of the OIPRD.

BOTTOMLESS DATA SINKHOLE

The draft regulation takes nearly 500 words to describe a weirdly elaborate framework for how police forces should process and store the information they collect from stops. But it doesn’t take much scrutiny to realize that police would be allowed to hold on to this information indefinitely.

The joint response suggests that police should just collect and record information necessary for the specific purpose of a stop and then use it for only that purpose, rather than incorporating it as part of an expanding database of ordinary citizens who aren’t charged with or suspected of any crime.

Police chiefs would also be required to designate someone to review information that’s been collected to ensure it came from a legitimately conducted stop. That’s a good idea, except that these reviews are to take place within 30 days after the information has already been plunked into a police database with unrestricted access. 

And if the information wasn’t properly obtained? Well, then it’s put into a different police database with only slightly more restricted access. The joint response suggests that police conduct such reviews before the information is put into a database – and if it turns out that a person’s info wasn’t lawfully collected, then it should be destroyed, not kept forever.

“We are not here to be ‘policed,'” activist and journalist Desmond Cole told the gathered media on Monday, by way of explaining what appears to be an underlying divergence in philosophy. “We are here to work in partnership with our police, and we cannot do that unless they follow the law.”

jonathang@nowtoronto.com | @goldsbie

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