At a public (by invitation only) meeting held on October 23, 2013, at the Toronto Police Headquarters, Chief Bill Blair and Deputy Chief Peter Sloly incorrectly stated that Law Union of Ontario member Paul Copeland has claimed the practice of “carding” by the Toronto Police is legal. Below, Paul responds in an open letter to Chief Blair and Deputy Chief Sloly.
——
October 29, 2013
Chief Blair and Deputy Chief Sloly
Toronto Police Service
40 College St
Toronto, Ontario
MSG 2J3
Dear Chief Blair and Deputy Chief Sloly:
Last week I received information that at a public (by invitation only) meeting held last Wednesday at the Toronto Police Headquarters, you both said that you had advice, or an opinion from me, that the practice of “carding” by the Toronto Police was legal.
On the weekend I received a partial transcript of what you said at the meeting.
The PACER Report mentioned opinions the Toronto Police had obtained from “three eminent jurists”. The Report said that the three lawyers were unanimous in stating that “the police officers may, for legitimate policing reasons, approach members of the community and seek their voluntary cooperation in responding to questions seeking personal data and other information collected for law enforcement purposes. There is nothing legally wrong with collecting, using or retaining that information.”
Attempts have been made to have those three legal opinions released by the TPS or the TPSB. So far the opinions have not been made public.
I am enclosing the partial transcript from the Wednesday meeting. I am distressed that at a public meeting you would appear to interchange what you describe as my opinion (or advice) with the three legal opinions that were obtained from the three eminent jurists by the TPS. I presume when you mentioned advice or an opinion from me you were referring to the Toronto Star article I wrote, or to the material I presented to the TPSB last winter.
I am enclosing the article from the Toronto Star. The only thing that I said in that article concerning the legality of questioning by the police was the following:
“In general, the police can ask you any questions they want but you do not have to talk to them, show them your identification or answer their questions”.
When I made the presentation at the Toronto Police Service Board on January 23, 2013 I presented not only the Know Your Rights material, I also read and presented the enclosed one and a half page Speaking Notes. In those speaking notes I said that I would leave it to others to speak “about the propriety and constitutionality of the police gathering and storing information obtained by police officers in Toronto using the Field Information Reports.”
I would like to add that I was surprised that the Law Union was not invited to your consultation. The Law Union of Ontario is comprised of lawyers and law students who are actively involved with dozens of community groups in the city and it has devoted much time and effort on the “carding” issue. It is puzzling why you decide to exclude them from last week’s consultation.
It is my view that the practice of carding as carried out by the Toronto Police Service violates the Charter Rights and Freedoms of those persons who are stopped by the police and in the discriminatory manner in which the carding is done violates the Ontario Human Rights Act.
Please do not, in future, state that my view of the “carding” process is in line with the three opinions that have been obtained from the three unnamed eminent jurists.
Yours truly,
Paul D. Copeland, C.M. LSM
PDC/dm
Encl.
Cc: Howard Morton, Q.C.
Law Union of Ontario
Over the last year, the Law Union of Ontario has made four submissions to the Toronto Police Services Board explaining why its practice of carding is unlawful. Read and download those submissions below.
1. The Law Union of Ontario remains of the strong view that both the Toronto Police Service policy with respect to “carding” and the manner in which it is carried out violate the Canadian Charter of Rights and Freedoms and the Human Rights Code. […]
Recommendation 1
7. Given that the Board has had this issue before it for over one year and seems unable to respond to public concern and anger in a timely fashion, we urge the Board to direct Chief Blair to suspend the practice of “carding” until the Board reaches its conclusion with respect to whether the practice violates the Charter and Human Rights legislation.
Recommendation 2
8. In the event that the Board is unwilling to suspend “carding” until these issues have been resolved we urge the Board to forthwith direct Chief Blair to issue a standing order or directive mandating that all officers caution persons approached for the purpose of 208 carding or street checks, advising such persons that they have the right to refuse to answer questions and are free to go.
The issue is not whether the use of Form 208 and the manner in which it is deployed are necessary in order that the TPS can meet its operational requirements.
The issue is whether such use and deployment are lawful.
The Law Union of Ontario continues to maintain that both Form 208 and the manner in which it is filled out ie, street checks are used, are violations of the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code, and municipal and provincial privacy legislation.
Throughout the history of the common law many unlawful investigative stratagems have been used by police officers in free and democratic societies. These stratagems were often carried out under the guise of being necessary due to “operational requirements” to facilitate criminal investigations and prosecutions or intelligence gathering operations.
Some examples of such conduct are:
Using physical or psychological force to obtain confessions or statements.
Unlawful entry on property or buildings without a search warrant or exigent circumstances.
Unlawful wiretap or other interception of communications without judicial authorization.
The unlawful removal and replacement of private property for investigative purposes.
Even prior to the Charter of Rights and Freedoms such conduct was held by Courts to be unlawful requiring a cessation on their use. Under the Charter of Rights such practices have been held to be violations of the supreme law of Canada.
4. The Law Union of Ontario submits that both the design of Form 208 and the manner in which “carding” is deployed are clear violations of both the Charter of Rights and Freedoms and the Human Rights Code.
5. In labeling street checks as form of “community engagement Police claim they are a form of community policing. In reality, street checks are carried out as intelligence gathering of personal information from individuals who are not engaged in criminal or antisocial behavior and who are conducting themselves in a law abiding manner.
6. Many individuals, particularly youths, are unaware that they have the right to walk away. They feel intimidated and obliged to respond, often arising out of the inherent power difference between the police and youths. Even if individuals are aware of this right they often fear reprisal of one form or another if they attempt to exercise their right.
3. The design and use of Form 208 and in particular the manner in which the practice of “Carding” is deployed are both clear violations of the Canadian Charter of Rights and Freedoms. Specifically the individual rights guaranteed by Sections 8 and 9 of the Charter are clearly infringed and denied and on a case by case analysis are violations of Sections 2, 7, 10 and 15 of the Charter.
4. The manner in which this so-called form of “community engagement” is deployed warrants scrutiny by the Board. We have authenticated reports from individuals who state that when they decline to either provide identification or provide the information set out in Form 208 as in the absence of special circumstances is their absolute right to do, officers then resort to illegitimate ruses and stratagems such as the following:
a) Officers falsely state that they are involved in a criminal investigation and that the individual matches the description of the suspects. It should be noted that some officers may wrongly believe that by so stating they bring themselves within the broader scope of “investigative detention” as set out in R. v. Mann.
b) Officers attempt to circumvent and nullify the individuals assertion that they do not wish to identify themselves or provide the Form 208 information by implicitly threatening remarks such as:
i. What are you trying to hide!
ii. What do you have in your pocket!
iii. Do I have to take you to the Police Station?!
c) Officers engage in “pat down searches” of the individual which are clearly unlawful.
5. The approaching and stopping of persons without lawful cause followed by a request or demand for identification and answers to the information sought by Form 208 clearly constitute “detention” within the meaning of the Charter of Rights. Such demands or requests for identification and information clearly constitute a “search” within the meaning of the Charter.
6. In the overwhelming majority of cases the persons which the police seek to “Card” are doing nothing that would lawfully warrant such police intervention.
7. Not only is the practice of “Carding” in such a manner an unlawful violation of the Charter, it has resulted in community apprehension, sentiment and fear particularly in marginalized communities which undergo a disproportionate “Carding” presence.
8. Further, individuals who are apparently targeted for “carding” are disproportionally racialized youth. The practice is viewed in these communities as racist policing. Often these are the very communities in which the police seek and need cooperation in the pursuit of legitimate law enforcement and criminal investigation purposes.
After nine weeks, the 30,000 California prisoners protesting the conditions of solitary confinement suspended their hunger strike today. California holds nearly 12,000 people in extreme isolation cells with no windows and no access to fresh air or sunlight. The United Nations condemns the use of solitary confinement for more than 15 days as torture, yet many people in California state prisons have been imprisoned in solitary confinement for 10 to 40 years.
The Prison Justice Committee of the Law Union is committed to reducing the destructive impact of harsh criminal justice policies on the lives of individuals, families and communities. We are concerned about the long-term impact of appalling conditions inside prisons in both the United States and Canada.
As the Ashley Smith case has taught Canadians too well, solitary confinement is an inhumane and degrading policy that accomplishes no rehabilitative purpose. We condemn the use of extended solitary confinement in the strongest possible terms.
The fight is not over. Prisoners should not be forced to place their health and very lives at risk in order to protest torture. We call on California Governor Jerry Brown and the California Department of Corrections and Rehabilitation (CDCR) to respond immediately to conditions that have lead to the statewide hunger strike in California prisons.
We call on Canadian Prime Minister Stephen Harper to listen to the voices of the California prisoners. Canada’s increasing reliance on solitary confinement, particularly targeting women and Aboriginal prisoners, must end.
While we welcome the recent commitment to legislative hearings and congratulate the strikers for the changes they have inspired, we join the hunger strikers in demanding that California fully implement the prisoners’ five core demands, which are:
End Group Punishment & Administrative Abuse.
Abolish the Debriefing Policy, and Modify Active/Inactive Gang Status Criteria.
Comply with the US Commission on Safety and Abuse in America’s Prisons 2006 Recommendations Regarding an End to Long-Term Solitary Confinement.
Provide Adequate and Nutritious Food.
Expand and Provide Constructive Programming and Privileges for Indefinite SHU Status Inmates.
The Law Union of Ontario is a coalition of over 200 progressive lawyers, law students and legal workers. For more information visit: http://prisonerhungerstrikesolidarity.wordpress.com
Resistance Continues to Harper’s Omnibus Crime Bills
In March 2012, the federal Conservatives passed the Omnibus Crime Bill C-10, despite the protests of thousands of Canadians that the bill would greatly increase the prison population, would not prevent crime, would cost billions of dollars and would have a devastating impact on already marginalized communities, particularly Aboriginal communities who are already drastically over-represented in Canadian prisons.
Harper is not done: Bill C-54, currently before Parliament, could drastically increase the length of detention for those found “not criminally responsible.”
On January 17th, the Law Union of Ontario hosted a community meeting to brainstorm ways to prevent the implementation of the omnibus crime bill and stop Harper’s unjust law and order agenda.
Please join up for an important follow-up meeting, for updates and action to further the resistance.
Thursday, May 23
Friends House – Meeting Room
60 Lowther Avenue (just north of Bloor, near St. George Station)
Toronto, ON
6:30-8:30 pm
https://www.facebook.com/jackie.esmonde?ref=tn_tnmn#!/events/511737898888895/?context=create
Featured Speakers:
Suzan Fraser (lawyer): an update on Bill C-54, and its implications for prisoners.
Updates from the four working groups struck at the January 17th meeting
There will time to work together to brainstorm next steps.
Light refreshments will be provided
ASL and child care will be available. Please email esmondej@hotmail.com by May 17th if you require these services.
Hosted by the Law Union of Ontario’s Prison Justice Committee
For updates please check:
https://www.facebook.com/jackie.esmonde?ref=tn_tnmn#!/events/511737898888895/?context=create
www.twitter.com/LawUnionOntario
www.lawunion.ca
