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FACL – Advocacy and Policy Committee’s Carding Recommendations

On December 18, 2015, FACL Ontario’s Advocacy and Policy Committee prepared recommendations for consultation regarding Ontario’s proposed regulation for street checks.

Download the cover letter here.

Download the full recommendations here.


 

December 18, 2015

The Honourable Yasir Naqvi, MPP

 

Dear Minister:

Re: Ontario Proposed Regulation for Street Checks Consultation

Thank you for meeting with us on December 8, 2015 to discuss the draft regulation, “Collection of Identifying Information in Certain Circumstances – Prohibition and Duties” (the “Draft Regulation”). We write these submissions to supplement our comments at that meeting.

As we understand it, the police practice of “street checks” (or “carding”) is the stopping of individuals to attempt to collect identifying information about them when the police do not have the legal basis to detain them (i.e., reasonable grounds to suspect). In our view, this practice has not been shown to be reasonably necessary to serve the public interest. Among other things, we have not seen any evidence that the practice of “street checks” actually reduces crime rates. And even if it did, we are not convinced that the benefits to law enforcement outweigh the costs imposed on the freedom of individuals to be left alone and the risks of discrimination against racialized groups. It is worth remembering that the Supreme Court of Canada created the investigative detention power “to balance individual liberty rights and privacy rights with a societal interest in effective policing.” The police practice of “street checks” goes beyond this balance by sanctioning the practice of stopping individuals to gather information even where the police do not have the basis to conduct an investigative detention.

That being said, we recognize that the Ministry has made a serious and good faith attempt to address the police practice of street checks and to limit its scope. More specifically, we commend the Ministry for its attempt to implement safeguards against discrimination and to promote accountability and transparency. It is in this spirit that we provide our supplementary submissions. We do so with the goal of enhancing the clarity of the Draft Regulation and ensuring that it will achieve its intended purposes, bearing in mind the exceptional nature of the police practice being sanctioned.

In an attempt to be as concrete as possible, we have enclosed a black-lined version of the Draft Regulation with specific proposed amendments for your review. We explain our thinking behind the most important proposed amendments below.

Section 1 (applicability of the Regulation)

If the Regulation is to achieve its intended purpose, it is important that its applicability not be too narrowly defined. There is no reason to limit the applicability of the Regulation to the four specific circumstances currently set out in s. 1(1) — especially when there are already a number of specific exemptions in s. 1(2). Moreover, it is confusing to read s. 1(1) together with the other provisions in the Draft Regulation: e.g., s. 1(1)(d) dealing with the applicability of the Regulation covers the exact same ground as s. 4(2)1(ii) dealing with a non-arbitrary street check (“inquiring into suspicious activities for the purpose of detecting illegal activities”).

It is far better for the sake of clarity to have a general applicability provision (as we have proposed), subject to a number of specific exemptions. This will ensure that the police only escape the rigours of the Draft Regulation where specifically justifiable.

We have proposed two significant changes to the current list of exemptions. First, and most importantly, s. 1(2)(d) should be removed. This is the largest loophole in the Regulation. If the police can exempt themselves from the Regulation whenever they are “investigating a particular offence”, then the Regulation will almost never apply. The police will almost always be able to ground their attempts to collect identifying information in a “particular offence”. Moreover, the line between the investigation of aparticular offence and a more generalized investigation is one that is nearly impossible for a police officer to draw in the field. Indeed, we’re not even sure such a concept exists. An investigation is necessarily directed at a particular offence or a particular set of offences — otherwise, there is nothing to investigate.

If a distinction is to be drawn, it makes far more sense to draw it between investigations based on generalized suspicion and investigations based on individualized suspicion (i.e., reasonable grounds to suspect that a particular individual is implicated in criminal activity). If the latter exists, then the police can conduct an investigative detention and the Regulation will not apply by virtue of 1(2)(b). If only the former exists, and the police wish to collect identifying information, then they should be required to comply with the strictures of the Regulation.

To summarize, for those officers inclined to comply with the Regulation, the burden of having to make a distinction between generalized investigations and investigations directed at particular offences is unfair. For those inclined to avoid the rigours of this regime, this will make it far too easy. If left in place, s. 1(2)(d) will be the exception that swallows the rule and defeats the purpose of the Regulation.

Second, s. 1(2)(f) should be rephrased to apply only where the officer “does not record” the information gathered in the course of an informal or casual interaction. The present criterion (“the officer has no intention, at the time of the attempted collection, of recording the information”) is unenforceable and therefore undermines accountability. It is too difficult to police the intentions of an officer at a specific moment in time; and it is too easy for officers to avoid the requirements of the Regulation by pointing to a change in intention. We appreciate that the Ministry does not want to prevent police officers from engaging in informal or casual interactions with individuals. Where police officers do so, however, they should not be allowed to record any information gathered — especially since that’s not the purpose of the interaction.

Finally, we propose to amend s. 13(2)3 to ensure that reporting requirements capture all of the circumstances in which the police determine that they are exempt from the Regulation. Just as it is important for the public to know when the police have exempted themselves from the requirement to inform an individual of his or her rights under s. 5, so too it is important for the public to know when the police have decided to exempt themselves from the Regulation as a whole. If anything, the latter is more significant for the purposes of transparency.

Section 4 (circumstances in which information can be collected)

We applaud the Ministry for prohibiting the attempted collection of identifying information when “any part of the reason for the attempted collection is that the officer perceives the individual to be within a particular racialized group”. This prohibition is critically important to the prevention of racial profiling, which is the most insidious and dangerous consequence of the police practice of street checks. It is also among the most common, at least in Toronto.

In the Draft Regulation, however, this laudable prohibition is followed by an exception where “being within the racialized group forms part of a credible description of the particular individual or is evident from a visual representation of the particular individual” (s. 4(1)(a)(ii)). This exception should be removed.

We appreciate the intended purpose of this exception. Police officers sometimes receive descriptions about individuals involved in criminal activity that are based in part on perceived membership in a racialized group (“Asian male”). We agree that the police should not be prohibited from acting on these descriptions in all circumstances. We do say, however, that the police should only be allowed to act on such information where it rises to the level of “reasonable grounds to suspect” that a particular individual is implicated in criminal activity. Where that standard is met, the police will be allowed to conduct an investigative detention under current Canadian law and this Regulation will not apply by virtue of s. 1(2)(b). Thus, there is simply no need for the additional exception in s. 4(1)(a)(ii).

The effect of the additional exception in s. 4(1)(a)(ii) is to allow the police to act on the basis of perceived membership in a racialized group even where that perception does not rise to the modest threshold of “reasonable grounds to suspect”. That cannot be justified. It will inevitably lead to racial profiling.

Section 5 (informing the individual of his or her rights)

We are encouraged by the inclusion of s. 5 in the Draft Regulation, which requires the police to inform an individual of his or her rights before attempting to collect identifying information. We think, however, that it can be improved in three ways.

First, the existing requirements should be more robust. It should be made explicit that the police cannot attempt to collect any identifying information about the individual until they first inform the individual of his or her rights. The police should be required to use positive rather than negative language (e.g., “right to leave freely” vs. “not required to remain”). The police should be required to inform the individual of his or her right to refuse to answer any questions in addition to the right to leave without consequence. And the police should be required to assess whether the individual understands English; if not, the police should not proceed absent an interpreter.

Second, as many groups submitted forcefully at the December 8th meeting, special protections must be given to minors who come into contact with the police. Canadian criminal and constitutional law (and international law) is replete with statements that minors deserve special legal protection in their interactions with the State. The Draft Regulation does not recognize this. We propose a number of ways in the enclosed document to achieve this, not the least of which is to ensure that minors are given special cautions concerning their right to have a parent, legal guardian or counsel present when a police officer is attempting to collect identifying information from them.

Third, we are very concerned about the exception in s. 5(2)(a), which states that a police officer does not have to inform an individual of his or her rights where the officer has a reason to believe that doing so “would likely compromise a police investigation of a particular offence”. As with the exception in s. 1(2)(d), this exception is likely to swallow the rule. One can expect police officers to assert with regularity that providing the cautions required by s. 5 will compromise the investigation of a particular offence because the individuals may then decline to cooperate with them. That, however, is the point of the cautions — to make it clear to the individual that he or she has the right to do precisely that under Canadian law. The police should not be allowed to take advantage of Canadians’ ignorance of their legal rights — especially when they do not even have the grounds necessary to conduct an investigative detention.

Conclusion

In closing, we wish to reiterate that the police practice being sanctioned by the Regulation — the power to stop individuals and collect identifying information to be stored in a database where the legal grounds for an investigative detention do not exist — should be an exceptional one. The dangers of abuse are significant, especially for racialized minorities. It is with this in mind that we have proposed a number of ways of tightening up the Regulation to enhance its ability to achieve accountability and transparency. We hope you have found these submissions helpful. We thank you for the opportunity to participate in this process.

Yours Truly,

 

Brendan Wong

President, FACL Ontario

 

Gerald Chan

Board Member, FACL Ontario

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