Police carding criticism comes from all sides in wake of new rules

“It is certainly not the end of the debate around carding because on our read of it, carding can continue under these new regulations,” said Noa Mendelsohn Aviv, director of the CCLA’s equality program.

“Ontario chooses band-aid instead of banning carding,” the African Canadian Legal Clinic declared in a news release issued Thursday.

The police union also cast a dubious eye.

Toronto Police Association President Mike McCormack predicts the regulation, which takes effect Jan. 1, will prevent officers from gathering the “intelligence” they need to solve crimes.

No hardened “gang banger” is going to hang around and talk to police after being told “you don’t have to provide any information,” he said.

“Our officers will still engage (with the public) and still be professional, but I don’t know if this is going to meet the requirements of specialty units... (guns and gangs, the holdup squad, etc.) to gather intelligence, to investigate crimes.”

Members of the public could be forgiven if they feel a case of déjà vu. Once again, criticism is coming from all sides.

Last fall, after years of debate and Toronto police stonewalling, Community Safety Minister Yasir Naqvi revealed the province’s plan to ban the arbitrary and race-based collection of identifying information by police, called carding or street checks.

Neither black activists nor police leaders were satisfied.

That led to public consultations and Naqvi’s announcement, this week, that he was introducing an updated regulation, “to govern interactions with members of the public” to ensure they happen “without bias or discrimination.”

Naqvi picked Tuesday — the same day as the federal budget — to release the new rules a day after the regulation was completed, his spokeswoman said.

It was the “earliest available opportunity” so the ministry and an expert panel can start developing the new training curriculum for police officers across the province, said Clare Graham.

Yet again, no one is completely satisfied, which comes as no surprise to union head McCormack. “You just can’t make everybody happy on this controversial issue,” he said.

Defence lawyer Ari Goldkind, who ran for the Toronto mayor’s job as a long-shot candidate in 2014, agrees. While his campaign platform included a promise to abolish carding, he believes no perfect solution will ever be found because positions are so entrenched.

“There’s the fundamental question of what are the police for, what are they to do. If they are, theoretically, doing their job, there’s always going to be feathers ruffled.”

He thinks the new regulation is “an incremental” but positive step because it codifies what the Supreme Court of Canada has said about lawful detention: that officers may detain an individual briefly, if there are reasonable grounds to suspect someone is connected to a crime.

“Will it eliminate racial concerns in dealing with police? No. I’m not sure what will unless you obviously eliminate the presence of police in a certain way, and I don’t know people want that to happen either.”

Goldkind said the best solution is to pin lapel cameras on all front-line police officers “so there are no more guessing games when it comes to carding or any use of force. The discussion has to be elevated so it’s not people with political positions digging in. Let the truth see the light of the day.”

Knia Singh, an Osgoode Hall law student who has launched a charter challenge of carding, said he is willing to give the new rules a chance, calling them a “huge improvement” over the draft regulations released last year.

But he does have “areas of concern,” including the omission of language addressing the retention of existing data. For that reason he is continuing his court case.

“If the police follow the regulation honestly, we will have very minimal problems,” he said. “I think it will satisfy a lot of issues that we have. If the public is aware of their rights and how the regulations work, they’ll be able to assert their rights.”

With files from Jacques Gallant

How the carding rules have changed

The Star compared the final carding regulation announced Tuesday to the draft regulation released by the province last year and to the Toronto Police Services Board’s 2014 policy on “community contacts.” In many ways the rules have remained the same, but there are key differences in the three documents.

Similarities

A police officer cannot initiate contact based solely on race.

A valid reason to initiate a contact is to investigate a particular offence.

Officers must provide some kind of document with their name and badge number after initiating contact.

Police forces will no longer be able to use quotas for collecting identifying information.

Training must be conducted to ensure the contacts follow the law.

The chief or his or her delegate will periodically review identifying information collected.

Access to information is restricted if it’s found to have been inappropriately collected.

The chief of police is required to submit an annual public report to the police services board related to carding data.

Key differences

Reason for the stop: While all three documents require the police to offer some kind of receipt to the individual which includes the officer’s name and ID number and time and location of the collection of information, the draft regulation specifies that it should also include the reason. The final regulation does not.

“Community organizations have fought for this and wanted to make sure there’s a receipting process,” said Anthony Morgan, staff lawyer at the African Canadian Legal Clinic.

“But these receipts don’t have to include the reason for the stop. So again, too often, we have a situation where it’s ‘he said, she said.’ The police can write in their database their reason, which the public doesn’t have access to, but not on the receipt... That is a serious, serious gap.”

Future improvements: Under the final regulation, an independent reviewer will re-examine the regulation within two years of its implementation and make recommendations to improve it. The reviewer will work in conjunction with the government’s anti-racism directorate.

“This gives everybody the opportunity to see this regulation in action, to be able to see whether their fears were justified or not and whether there needs to be further tightening,” said Alok Mukherjee, former chair of the Toronto police board. “So I think that provides some back up.”

Cutting out bias: The final regulation, like the other two documents, indicates that the police cannot stop a person based solely on race when seeking a suspect. But it also expands on additional information that police can rely on before making the stop, including: the individual’s clothing, height, weight, eye colour, hair style, location where they might be found, type of vehicle they might be in and associates they might be with.

“We see that as directly addressing the criticism... of young black men not being a sufficient reason to card somebody,” said Mendelsohn Aviv. “That’s an example of an improvement that we’re seeing, but I think it’s still somewhat limited and will leave room for carding and racial profiling.”

Under the final regulation, chiefs of police must present their civilian oversight boards with an annual public report that includes information on the number of attempted collections. The Toronto police board’s earlier policy, however, went further by giving the board specific power to analyze the data. (The board is not obligated to scrap its policy but must ensure it falls in line with the province’s regulation.)

“The board’s policy had an annual community satisfaction survey being done by an external independent body, and the board’s policy required that the board will have the authority to bring in, once a year, an outside social scientist to have access to anonymized information from the police database and do an analysis to determine whether there are trends or patterns of concern,” said Mukherjee.

— Jacques Gallant, Staff Reporter