It feels like 2015 was the year of “carding” in Toronto.

Arguably, when various descriptions of the practice are considered, carding occurs when

1. police officers,
2. based on their own hunches, whims or subjective, often problematic motives, rather than any approved method or system of legal justification,
3. in the absence of criminal suspicion,
4. decide to stop people to

• question them,
• record their personal and other information, and
• retain that information for future investigative use.

While parts of the mainstream media started to drill down on the existence and problems associated with carding and similar police actions more than a decade ago, it seems that during that last three years carding has truly come to the foreground of public discussion as evidenced by, among other things,

• Desmond Cole’s precipitative article in Toronto Life magazine about repeatedly being on the business end of “street checks” and carding,
• the Black Action Defence Committee’s class action lawsuit against the Toronto Police Service and a similar subsequent action against Durham Regional Police,
• the Toronto Police Services Board’s ongoing consideration of carding policy (obtaining legal opinions, holding public meetings, producing revised directives, etc.),
• consideration of carding in other jurisdictions including Peel Region, the City of Hamilton and outside Ontario (particularly in connection with indigenous people),
• new coalitions of legal/civil/human rights organizations and advocates asserting public demands to regulate or end the carding,
• action in the Ontario Legislature including a successful opposition motion against the practice, and ultimately
• the creation of new regulations purportedly aimed at limiting carding and curtailing its worst and most discriminatory aspects, most notably its irresistible connection to racial profiling and its disproportionate impact on black men.

In October, when Minister of Community Safety and Correctional Services Yasir Naqvi announced the proposed regulations, combatants in the carding fight seemed pleased and vindicated with what the Ontario government was prescribing.

Generally, under the draft regulation, when people are freely moving around the community and the police do not have any legal basis to demand that they stop and stay for police to seek information including their name, address and/or other person information, the police, essentially have to tell them

• (a) that speaking to the police is voluntary and that they are “not required to remain in the presence of the police”,
• (b) why their information is being recorded and collected, and then, once the police have attempted to engage the person and get her personal information, the police must
• (c) provide the person with a written document detailing the officer’s name and identification number (i.e. badge number), the date, time, location and reason for the collection, information about how the individual can contact the Independent Police Review Director (e.g., to file a complaint), and how to access the information that was collected.

Now, after several weeks consideration, anti-carding entities are collectively saying “Hold up, wait a minute…” In particular, some are now expressing concern that, effectively, the proposed regulation has too many loopholes to effectively fight racially biased police engagement in the community or enhance transparency and accountability in police-citizen street interactions.

Rather than a broad regulation that covers most street level interactions and ensures that the police tell someone, “Hey, I want to talk to you but you’re not under arrest, I’m not detaining you and you free to leave now without speaking to me or at any time”, the proposed street check rules actually seem to cover a much more limited range of police-citizen interactions. This would mean the transparency hoped for is less and the direct and adverse-impact discrimination alive today would still have a feeding tube.

Giving the draft regulation, entitled “Collecting Identifying Information In Certain Circumstances – Prohibitions and Duties” [“CIICC”], a cursory appraisal, a few things seem apparent about its application:

• It is directed at certain interactions between police and individuals on the street which might be labelled “voluntary”.

Subsection 1(1) of the regulation lists four contexts in which the CIICC regulation would apply and none are situations in which a targeted individual is compelled by any law to remain in an officer’s presence and provide personal information.

For example, clause 1(1)(d) indicates that the CIICC applies to situations where a police officer is attempting to get personal information from someone during a “general investigation” into unspecified offences that might be committed in the future.

Canadian law does not compel anyone to stay and talk with police for this reason. No one could legally and justifiably be physically prevented or arrested for waving “Bye bye” and keeping her mouth shut in this context or the three others listed in section 1.

• There are situations in which the CIICC is intended to never apply.

In contrast to subsection 1(1), when one considers the list of situations when the CIICC would not apply in subsection 1(2), it is populated with circumstances in which the police can demand that you “stay”, situations that start out very casually , and situations that seem to suggest investigational needs are prioritized (but are common and easily constructed).

For example, when they arrest someone based objectively supported grounds that an officer honestly believes exist, the individual is not free to leave and a set of guaranteed rights under the Charter of Rights and Freedoms kick in which require police to tell the individual why she’s been arrested, that she has a right to consult with a lawyer and get advice, and that she need not say anything in response to being arrested for the offence in question. Obviously, it would make no sense for an officer to say the individual was free to leave (because she’s not), because she’s arrested she has a constitutional right to know why she was, and it would be clear that the police want her personal information in connection with the arrest.

If the police follow the arrest with preparing and filing in court a sworn document stating they believe she committed a particular crime or crimes, then as she faces criminal charges in court she will be entitled to receive information about the name and badge number s of the officers involved in her arrest and detailed information about the investigation (referred to as “disclosure”).  Arguably, getting a document or “receipt” listing details about the interaction with police as would be required under the CIICC for “voluntary” encounters with police seeking personal information is redundant or unnecessary if she is effectively going to get the same information and more in the court process post-arrest.

But making exceptions for situations when people have no choice but to stay under police control and face demands for their personal information might not always be reasonable and effective if the goal of this regulation is improved transparency and accountability and better scrutiny of racially biased conduct arising from police choices to stop and probe people for personal information.

For example, while some may find it difficult to believe, the police do arrest people and then later on, either at the scene of arrest or at the police station, decide (because they’ve decided no crime has actually been committed or that they’ve got the wrong person) to let them go without being formally charged (often referred to as being “unconditionally released”). Under the CIICC as proposed, it appears people in this situation would not be automatically entitled to receive any documentation with the name or badge number of the arresting officer who sought their personal information, the time and place it was sought, the reason it was sought, information on how to complain to the Independent Police Review Director, or how to obtain information held by the police (about the interaction) under access to information and privacy laws.

On the back-end of an arrest leading to no charges, one that might have been clearly unlawful from the start or, in a worsening scenario, malicious and motivated by racial bias, one could see why someone might want the informational protections of the proposed CIICC.

• There are situations in which the CIICC is generally intended to apply but may not if a police officer uses his discretion to decide (and can sensibly explain) that it does not.

Again, normally the officer would have to tell the individual why he wants his personal information and that he can walk away without giving it to him. But if the officer decides that providing this information

o   would LIKELY harm a police investigation of a particular offence,

o   would LIKELY make it possible to reveal the identity of a confidential informant, OR

o   MIGHT undermine a person’s safety,

then he does not have to say why he wants the information, that the person is free to be on his way, or provide written documentation to the individual summarizing the details of the encounter.

In criminal law, protecting the identity of a confidential information is considered too important to risk. Accordingly, in this context, a relatively narrow exception to suspend a person’s right to know why the cops want to speak to him and get his information feels familiar and is fairly easy to digest.

Exceptions for personal safety and maintaining the effectiveness of an investigation into a particular offence, at first blush, also seem reasonable. However, an “offence”, without more limitation, can be anything from a hot-pursuit situation in a fresh first-degree murder case to a suspected instance of a young black male walking outside the white lines at a pedestrian crossing at a traffic light 30 minutes earlier (arguably an offence under s. 144(22) of the Highway Traffic Act). Clearly, not all offences deserve equal weight but if occasionally an officer is determined to protect the integrity of his pedestrian crossing investigation then, under the proposed regulation, the officer will be entitled to withhold the information he would otherwise have to provide.

Further, many rights have been sacrificed on the altar of safety concerns.

Occasionally, a police officer has been known to testify that they have heightened safety concerns the second they arrive at the police station for work. If that’s the threshold for safety concerns (and it’s not the accepted standard for legitimate officer safety concerns in Canadian law in the context of detentions based reasonable grounds to suspect an individual of specific criminal activity) that officers would be applying on the streets during encounters which would otherwise require them to advise people of their right to walk away and withhold their personal information, then one could expect very few people to receive the purported benefit of the proposed CIICC regulation.

• Finally, police officers have a significant, remaining discretion to withhold the written proof of the encounter, i.e. the document detailing the officer’s name and badge number, the reason for attempting to get the target’s personal information, and the ways to complain or receive more information about the encounter under access to information laws.

Even where zero concern exists about revealing informants, people’s safety or harming the investigation of a particular offence, under the CIICC an officer can avoid preparing and providing the document to an individual if the officer decides it “would be unreasonable in the circumstances to do so”.

Unquestionably, a “reasonableness” standard is found throughout law generally and is a common standard for reviewing decisions after they have already been made. In the police carding context, however, the discretionary choices officers can make in low-visibility street encounters away from prying eyes (or unblinking cameras) before anyone ever gets to examine them after the fact, can obviously be influenced by various strains of bias, prejudice or improper motives concealed by readily constructed pretexts offered to individuals as the reasonable basis for denying them the information and documentation this proposed regulation is supposed to give them.  Of course, if there is post-encounter assessment of whether an officer acted reasonably in denying an individual the otherwise required documentation,  fake after-the-fact justifications could still be asserted to cover an unreasonable denial of a CIICC protection with a cloak of reasonableness.

A deep cynic, on reviewing and critiquing the proposed carding regulations, might see them as window dressing aimed at pacifying growing discontent with a now unavoidable issue; a play calculated at winning a game of optics.

Those less jaundiced may be prepared to accept the draft as an honest attempt to address a real problem that, understandably, might fall short of perfection.

Wherever you land on the issue, the carding discussion will continue in 2016, particularly as the draft regulations are revisited and ultimately finalized.

A “big picture” view, however, probably shows that even the world’s most perfectly built carding regulations will have limited effect without broader, more widespread measures designed to make hidden acts of police discretion during street encounters more transparent[1], create objective evidence of what takes place in low-visibility interactions between police officers and individuals so that subjective, contested accounts are not the main pathway on a journey for the truth[2], and reconsider (i.e. amend or repeal legislation) the laws which facilitate the use of pretexts and dishonest after-the-fact justifications and give life to discriminatory, bad faith policing.[3]

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[1]For example, in-car cameras and body cameras.

[2] Including criminal legislation requiring police to create and preserve certain types of evidence – for e.g., laws requiring all suspect statements to be video recorded as a prerequisite for their use as Crown evidence subject to limited exceptions.

[3] For example, highway traffic laws such as vague provisions regulating tinted windows, under s. 73(3) of the Highway Traffic Act, which permit highly subjective, hard to scrutinize police decisions to stop motor vehicles: “No person shall drive on a highway a motor vehicle on which the surface of the windshield or of any window to the direct left or right of the driver’s seat has been coated with any coloured spray or other coloured or reflective material that substantially obscures the interior of the motor vehicle when viewed from outside the motor vehicle.  R.S.O. 1990, c. H.8, s. 73 (3).

Photo Source: http://torontolife.com/city/life/skin-im-ive-interrogated-police-50-times-im-black/