Carding is a racist blot on the Canadian landscape

However, as much as it has been flouted throughout history and often been more acknowledged in the breach than in the observance, it stands as a symbol of the need to curtail the powers of the state in dealing with its citizens. Carding runs directly against that aspiration.

Indeed, the contemporary practice of carding continues the time-honoured tradition of talking proudly, but acting shamefully when it comes to the Canadian state. Such an oppressive practice has no place in a society that claims to be committed to political justice and social freedom.

There are two parts to carding. One is the untrammelled power of the police to stop people, without cause, and to ask them to provide proof of their identity. The second is to collect and store whatever information is obtained. While each of these parts is seriously ill-conceived, taken together they are deplorable bureaucratic practices.

The police already have extensive powers to stop and question people who they suspect are involved in some criminal mischief. Some say that these exercises of authority are already too incursive on citizens’ rights to privacy. But many recognize that, handled with sensitivity and fairness, such powers are compatible with the higher ideals of the rule of law.

But the whole basis of carding is that the police need not suspect any criminal wrongdoing at all in order to question people and check their identity. By any lights, let alone that of the Magna Carta’s letter and spirit, this is an egregious and unwarranted exercise of state power over its citizens. It is almost certainly in contravention of the Charter of Rights and Freedoms.

Apart from the means of obtaining such information, the retention and storage of those personal facts also ought to be anathema in a free and democratic society. The existence of a data bank of personal statistics that is held by the state and only accessible to its officers is the mark of a totalitarian state, not a democratic one. And the fact it is all done in the name of “public safety” is doubly offensive.

As well as being fundamentally flawed in itself, the problem of carding is compounded by its unequal and discriminatory administration. All studies on the practice both here and in the United States confirm that some groups (i.e., black men) are being carded in much greater numbers than any others. Carding is a racist tool in application, if not in design.

But the racist administration of carding only serves to underline the entirely indefensible nature of the practice at large. People should be free to go about their lives without concern that they will be apprehended and questioned by the police. So long as they are doing nothing wrong or even seem to be doing nothing wrong, they are entitled to the protection, not the persecution of the state.

So, although we talk with pride in the historical achievements of 1215, we act in ways that are more like the dystopian 1984 of Orwell’s imagination. Such a stance is not only hypocritical, but demonstrates that ideals can also act as ideologies. To say collectively one thing and do something entirely antithetical is the essence of ideology and injustice.

There is no place for carding in our society at all. Suggestions to regulate, but not outlaw the practice are wrong-headed. Carding is a blot on the Canadian landscape.

Allan C. Hutchinson is Distinguished Research Professor at Osgoode Hall Law School.