Ontario sets strict new limits on police street checks

Tactic of stopping and questioning people not suspected of a crime has been applied disproportionately to blacks, data shows.

Thestar.com
Oct. 28, 2015
By Wendy Gillies, Jim Rankin, Patty Winsa

You will be told you have the right to walk away. You will be told the interaction is voluntary. You will be told that you do not have to give any information, and why you are being stopped and asked for it to begin with.

You will be provided with a written record of your interaction, given information about the officer, and informed about the police complaints system.

In a move hailed as historic - and overdue - the Ontario government is proposing a strict set of regulations banning all random and arbitrary police stops, and setting limits on how and when police can question and document citizens.

“The regulation makes it very clear that police officers cannot stop you to collect your personal information simply based on the way you look or the neighbourhood you live in,” Yasir Naqvi, Ontario’s minister of community safety and correctional services, announced at Queen’s Park on Wednesday.

“This is the first rights-based framework surrounding these police interactions in our history.”

Once passed, the regulations would ban random and arbitrary stops in early 2016. After that, Ontario police could only stop, question and document members of the public if they have a valid policing purpose, defined as “detecting or preventing illegal activities.”

Under those circumstances, police would be forced to provide the reason for the stop and inform the individual of their rights to walk away.

There are, however, exemptions where officers would not be required to follow the developed procedures. That includes traffic stops, arrests and detentions, and situations where an officer is investigating a particular offence or working undercover.

“I want to make it very clear that the police officer will still have to file a report to his supervisor and will have to outline all those reasons,” Naqvi said.

Community activists who have longed decried carding say the proposed changes are a hard-fought recognition of their stories of discrimination and harrassment by police. Anthony Morgan, with the African Canadian Legal Clinic, said the proposed changes have the ability to “significantly diminish” the instances of discriminatory stops.

“What’s positive about the regulations is that this is actually law, so you’re not going to have officers who will be, hopefully, comfortable breaking the law,” said Morgan.

A cautious optimism was expressed by many activists and critics, who welcome the sentiment behind the regulations but say they need time to fully scrutinize the regulations.

“I was happily surprised, as I did not expect it to be so thorough. I think maybe myself and others were expecting a regulation without teeth, and that we would have to keep pushing and pushing,” said Knia Singh, a Toronto resident who is seeking a judicial review of Toronto police’s carding practice.

“Some clauses remain vague and there will need to be a public information campaign, and changes will have to be made to the complaints process. But it’s a brave and commendable step,” Singh said.

Among the major changes proposed is a mandatory annual report from every police force to the civilian boards that oversee them, breaking down the age, race and gender of every person voluntarily stopped.

The regulations also call for an explicit clause in the Police Services Act making unjustified carding stops grounds for a misconduct charge - launching an internal police disciplinary hearing. They also propose mandatory and ongoing officer training, with the curriculum developed by a panel of policing, human rights and anti-racism experts.

The draft regulations are now subject to a 45-day public consultation process. Then, the province will amend the regulations and provide time for police boards to make necessary changes to policy and procedures.

Following that, arbitrary and random stops would be prohibited by March 1. By July 2016, the regulations around voluntary interactions, such as the need to inform individuals they can walk away, would come into effect.

Carding is a practice by which officers stop, question and document members of the public who are not suspected of a crime. A series of Toronto Star investigations has shown the practice is disproportionately applied to young black men. The tactic has been criticized as discriminatory - as racial profiling by another name - for years in Toronto, and has come under fire in other cities across Ontario, including Brampton, Mississauga, London and Hamilton.

The provincial regulations come after a months-long review of street checks by the provincial government announced last June. Naqvi’s ministry conducted a series of consultations throughout the province for community feedback, including a heated meeting in Toronto in August.

“These conversations were difficult. They were emotional. They were moving. And they were necessary to get us where we are today,” said Naqvi.

In all, more than a thousand people provided online or written feedback, and the ministry received 34 written submissions from organizations. Naqvi’s office also consulted with several policing organizations.

Joe Couto, a spokesperson for the Ontario Association of Chiefs of Police, said he would not be commenting Wednesday.

“Should the OACP wish to comment on anything in the regs released today that we haven’t already done so during the consultation process, we will communicate directly with government,” Couto said.

Mark Pugash, spokesperson for the Toronto police, said Chief Mark Saunders and former chief Bill Blair have said that biased or random stops are unacceptable.

“When the regulation is complete ... that will become part of our procedure, which we’re currently in the process of operationalizing,” Pugash said.

Mike McCormack, president of the Toronto Police Association, stands by carding as a valuable policing tool when it is done properly. “I think (the regulation) is going to turn into a social experiment,” he said.

To the former chair of the Toronto Police Services Board, the regulations are a good start, but more work needs to be done. “I think there still remains a need to very clearly define the circumstances and purposes for which a street check and stop will be permitted in the regulation,” said Alok Mukherjee.

The Toronto Police Service resisted its board’s calls for stricter limits on carding until former chief Blair suspended the practice earlier this year. Mayor John Tory, who sits on the Toronto police board, initially stood by the practice, but changed his position on carding after facing public outrage.

Critics of carding have long said that there need to be strict regulations on how police use the data and how it is stored. Among the concerns highlighted during provincial consultations was that members of the public had no idea how personal information was being used or how long it was being kept.

Naqvi said Wednesday that the issue of what will be done with information already collected on individuals through carding still has to be determined. The province will ask police boards to develop their own policies dealing with that information.

The province’s expectation is that police will move information already collected into a restricted database accessible only by the chief of police.

But while the regulations were praised by some, others were concerned they did not go far enough.

“What the province should do is to stop playing word games and abolish all so-called ‘voluntary police-public interactions,’” said Chris Williams, an academic and activist who has been carded in the past. “For on-the-street purposes, the police have the power of investigative detention and, if needed, the power of arrest. Those powers are sufficient and anything more is excessive.”