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A closer look at new carding rules

|Written By Shannon Kari

The Ontario government’s proposed changes to limit arbitrary stops by police is a good first step, say many of the people and groups who have been working to end the practice known as carding.

‘The struggle for equitable policing does not end with these regulations,’ says Anthony Morgan. Photo: Robin Kuniski

But while there have generally been positive reviews of the announcement late last month by Community Safety Minister Yasir Naqvi, there are still concerns over some of the exemptions granted to police in the draft regulations.

“There is now a framework within which to work,” says Anthony Morgan, a policy and research lawyer at the African Canadian Legal Clinic in Toronto.

Morgan praises the province for its action and says he believes the draft regulations are a sign of “good faith” by Naqvi in response to the criticism of the practice of street checks by police in Ontario.

But Morgan stresses that the proposed changes are only a beginning.

“The struggle for equitable policing does not end with these regulations,” he says.

NDP attorney general critic Jagmeet Singh echoes that view. “I am cautiously optimistic. This is a work in progress,” says Singh.

Many media reports have suggested the provincial government is moving to ban carding. The proposals include a number of restrictions to limit the practice, yet there are also provisions that call out for clarification or amendment, says Toronto defence lawyer Lori Anne Thomas.

“The regulations are better than I expected, but there are gaps,” says Thomas, who’s also a Toronto director of the provincial Criminal Lawyers’ Association.

The draft regulations would make it a potential Police Act disciplinary offence to collect identifying information or make an unlawful or unnecessary physical or psychological detention without “good and sufficient cause.”

One of the permitted ways to collect identifying information is if it occurs during an “informal or casual” interaction and the officer initially didn’t intend to gather the data.

The wording “is very vague,” says Thomas.

“Whose perception is it that decides if it was informal or casual?” she asks.

As well, while a government backgrounder states that police can’t stop and collect information about individuals based on a “hunch or intuition,” that language isn’t in the draft regulations.

Police wouldn’t be able to collect identifying information of someone if one of the reasons is that the person is a member of a racialized group. However, if an officer is seeking to find a particular individual and being a member of the “racialized group” is part of a “credible description” of the person, the regulations would allow it.

The province needs to properly define and communicate such exemptions to police so they don’t use them to justify arbitrary stops, says Singh. The principles outlining the changes state that it’s not proper for police to collect identifying information based only on race or if someone lives in a neighbourhood with a high crime rate. Singh says he would like to see age added to those prohibitions. “Age is a major area of discrimination,” he says.

In certain communities, “if you are a young black man, you are going to get stopped,” he adds.

Data obtained by the Toronto Star earlier this year indicated that in Peel Region, there were nearly 160,000 street checks of individuals in the previous six years. Toronto police filled out 400,000 contact cards in 2012, a number that dropped to 11,000 last year, following numerous media reports and criticism of the practice.

The proposed changes would require police to provide individuals they stop with a document noting the name of the officer as well as the date, time, and location of the interaction. They must also provide the person with information on how to access the private information they’ve stored and how to complain to the civilian police oversight agency. The officer must also record the reason for the stop.

These requirements are significant, says Morgan, because they’ll provide more data about the interactions and perhaps require officers to be “more discerning” when they decide to stop and question individuals without reasonable grounds.

Police in Ontario have maintained that street checks are a legitimate investigative tool, a stance that Singh questions. “Up to now, there has been no statistical evidence to show it is useful,” he says. With a requirement for police to provide increased documentation when they stop people, there will be more data available to better address the issue, he suggests.

A representative of the Ontario Association of Chiefs of Police was unavailable for comment last week. In a statement issued on Oct. 30, it said it had concerns about the impact on public safety if the proposed measures become law.

The association also distinguished between carding, which it admitted involved random stops, and street checks that it described as obtaining information from citizens voluntarily and a valid tool of law enforcement.

Regardless of the name people give to them, these stops are “inherently random,” says Thomas. She’s skeptical of claims that those powers are necessary. “Police know how to identify crime. They know what needs to be done to identify reasonable suspects,” she says.

All the proposed changes would restrict, she says, is the ability of police to decide to interrogate a group of young men standing on a corner together on the pretext that “there must be something going on.”

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