Regulations can’t prevent police racial profiling

Lawyers continue to raise concerns that street checks by police disproportionately impact people from racialized communities, a few months before the scheduled completion of a report about provincial regulations on police checks.

Regulations can’t prevent police racial profiling
Osborne Barnwell says police officers need to build better relationships with the community to encourage people with information about crimes to come forward.

Lawyers continue to raise concerns that street checks by police disproportionately impact people from racialized communities, a few months before the scheduled completion of a report about provincial regulations on police checks. These regulations under Ontario’s Police Services Act came into force in January 2017. Court of Appeal Justice Michael H. Tulloch was appointed to conduct an independent review of the regulations. His report, along with recommendations to the government, is due in January, a website devoted to the review says.

The regulations describe how an officer can collect identifying information about a person or ask for such information. The regulations say a police officer can only ask for this information if the officer is inquiring into possible or already-committed offences, inquiring into suspicious activities to detect offences or gathering information for intelligence purposes. This practice — commonly known as “street checks” or “carding” — has been widely criticized by those who say police are more likely to ask for the identity of people from racialized or other marginalized communities.

Carding can be “an excuse for laziness,” says Osborne Barnwell, a Toronto lawyer, who has clients who have been stopped repeatedly by police even though they have done nothing wrong.

“I think what [police] need to do is build better community relationships so when a crime is committed witnesses will come forward freely,” says Barnwell. Those relationships are especially important with communities where police often suspect crime, he says.

Barnwell says he’s never been carded himself, but as a Black man, he understands the community’s concerns. He says it would be naive to say police should never stop anyone to ask for information, but that they need to suspect that an actual crime is occurring to do so.

“In our democratic system, in terms of the enforcement of our criminal laws, it has always been the case there has to be a grounds on which a police officer can stop somebody,” he says. “And that should continue to be the basic rule.”

Jack Braithwaite, a labour and employment lawyer with Weaver Simmons LLP in Sudbury, says carding should be completely eliminated.

“I’m of the view that there is no place for carding or street checks,” he says. “I think it’s inevitable that there’s going to be some profiling going on.”

Braithwaite, who is a member of the Canadian Association of Black Lawyers, says carding can make people feel embarrassed and increase feelings of mistrust they may have with police officers. When people are being carded, Braithwaite says, they feel “they have to be submissive, and if they’re not submissive, it’s a strike against them. It isn’t a balance of power. Even if they feel that it was unjust, that they shouldn’t have been stopped, they really have no recourse. They can’t prove anything.”

The regulations say that a police officer cannot ask someone for identifying information in an arbitrary way or solely because they are from a racialized community. They also say that police officers must tell someone that they are not obligated to give their identifying information and why they are asking for this information, unless doing so would put someone’s safety at risk, compromise an investigation or reveal confidential or legally protected information.

“There is a widely held belief among many members of racialized communities that when a police officer asks for their identification they’re required to supply it to them,” says Leonardo Russomanno, a criminal defence lawyer with Russomanno Criminal Law in Ottawa.

This leads to “mistrust when you have an entire community that is disproportionately subjected to police attention. It has a ripple effect on the entire community,” he says.

Police officers are also required, under the regulations, to maintain records about street checks, including documenting the reasons for the stops. They are required to offer individuals the chance to have a record of this interaction.

“I hope that by regulating police checks we can ensure that these stops and these checks don’t disproportionately impact members of racialized communities,” says Wade Poziomka, a partner with Ross & McBride LLP in Hamilton, Ont., who practises human rights law. “The police certainly have to have the ability to do their job. But they can do their job and still achieve the objective of proper investigation and ensuring our communities are safe without targeting members of racialized communities or exercising their powers in a way that could give way to bias.”

But the regulations contain large exemptions that lawyers say could still leave many people, especially marginalized populations, vulnerable to arbitrary and unnecessary police interactions.

The regulations do not apply if the police officer is attempting to collect information for an offence the police officer reasonably suspects has been or will be committed, the regulations say. The regulations also list certain situations where the regulations don’t apply, such as when arresting someone, executing a warrant or if an officer is undercover.

In a submission sent to the review in June, the Ontario Bar Association wrote that the exemption “is susceptible to broad interpretation, and as a result, undermines the stated objective of eliminating random, arbitrary and discriminatory interactions with police.” The submission says it is susceptible because the regulation does not specify if the particular offence is a crime in progress or if there needs to be a connection between the location of the street check and the crime in progress.

“The regulation creates an exemption that is very, very wide,” says Russomanno, who is also an Ottawa director of the Criminal Lawyers’ Association. He helped prepare a submission from the organization in 2015 that also raised concerns about the exemptions.

Lawyers are also concerned police officers don’t have enough training about racial bias.

“There is a lack of training, at least in some police forces across the province, in terms of racial profiling,” says Poziomka. “And I think that carding and street checks is a mechanism that can be abused as a result of that lack of training.”

The regulations say officers must be trained every three years about racial bias and the rights of individuals to not provide information to police officers. In its submission, the OBA says this training should be offered every 18 months. Members of the public need to know what their rights are when they’re interacting with police, says Christien Levien, a criminal defence lawyer in Brampton, Ont., who developed an app, Legalswipe, to help educate people about what their rights are during interactions with police.

Levien, who speaks openly about his own experiences with racial profiling while being carded, says marginalized “communities don’t feel empowered to hold the police accountable when their rights are being violated. This has very little to do with the type of training being offered [to police officers].

“The community cannot properly exercise their rights unless they’re being educated about what their rights are,” he says.

Street checks do serve some purposes, says Simon Borys, a criminal defence lawyer with Borys Law in Kingston, Ont. Before becoming a lawyer, Borys was a police officer in Southwestern Ontario. He says information police gather during street checks is part of “intelligence-led” policing and can help officers obtain information that can help investigate crimes in the future, such as seeing where and with whom potential suspects spend their time.

“Street checks and intelligence-led policing is a vital part of the modern approach to policing,” he says. “I think it would be taking a step back to prohibit that practice entirely.”

Borys says policing can “be susceptible to that kind of insular mentality [that] sort of feeds on itself.” He agrees police need to give objective reasons for why they stop people, and they need to be accountable. But he says the culture can change by hiring high-quality police officers.

“There’s not an easy solution to this,” he says. “Balancing these different rights and interests is a difficult thing.”

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