Carding by Toronto Police Violates Charter and Human Rights Code

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.

RE: STREET CHECKS – CARDING (June 20, 2013)

Excerpt:

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.

RE: STREET CHECK SUBCOMMITTEE (April 24, 2013)

Excerpt:

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.

RE: ISSUING RECEIPTS TO PERSONS WHO ARE STOPPED BY THE POLICE (Jan 23, 2013)

Excerpt:

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.

RE: ISSUING RECEIPTS TO PERSONS WHO ARE STOPPED BY THE POLICE (Nov 12, 2012)

Excerpt:

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.