Ontario to regulate police carding, opening practice to Charter challenge

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The Ontario government's decision to regulate carding will expose the practice to legal scrutiny, leading police chiefs across the country to prepare for changes to their own, often ill-defined, tactics.

And with the new rules, individuals will have a new option for recourse: complaining to civilian investigators, which could lead to officers' suspension or discipline.

The regulations will allow police to continue questioning people who aren't suspected of a crime, as most forces do now, at least in some situations. They will lay out, for example, "under what circumstances … a police officer may be able to stop a young, black person in the middle of the night," Community Safety Minister Yasir Naqvi said.

"Our aim for this regulation is to prevent unjustifiable police stops for no reason or without cause."

The new rules will be written after consultations this summer, Mr. Naqvi said. When asked why the province is acting now, after years and months of questions about the strategy's legality, he said: "It's never too late to do the right thing."

Mr. Naqvi said the law is clear that people who aren't formally detained are free to walk away from police. He said legislators "are open" to two frequent requests: to ask officers to inform people of that right to walk away, and to provide each person with a receipt describing the interaction. However, he said there are good reasons to keep some form of carding.

In Toronto, the street checks are often called "carding" to reflect the way police write down people's personal information on cards.

In 2013, the Toronto Star published an analysis of data showing that officers disproportionately card black men. In addition to the possible rights violations if officers consciously target minorities, there are "strong arguments" that at least some forms of street checks violate another section of the Charter by creating arbitrary detention, said Kent Roach, a constitutional law professor at the University of Toronto.

Right now, individuals can sue police forces for damages if they believe police have violated their rights in an encounter – but that asks a lot of the average person, creating a "skewed" set of options, said Mr. Roach.

"It's extremely costly, and if you sue the police and you're unsuccessful, you're going to have to pay a lot of the police costs. So, the downside is huge and the upside is minimal," he said.

A written provincial carding policy, however, will be open to challenges under the Charter.

In recent months, Toronto's carding controversy has spilled over into other jurisdictions, bringing the practice squarely into public view.

"This has been a topic of conversation for police leaders for a number of months," Jennifer Evans, Peel Regional Police Chief and president of the Ontario Association of Chiefs of Police, said. "I think the community is somehow getting the idea that officers are out there randomly stalking people because of their colour and documenting them for no apparent reason. That's really not what street checks were designed for."

The practice is typically used in areas known, for example, "for a number of unsolved sexual assaults or break-ins," said Bruce Chapman, president of the Police Association of Ontario. "This individual may not be a suspect, but could be a witness or know something that can lead to an arrest."

Toronto Police Chief Mark Saunders has made similar arguments in favour of carding, saying he wants to do away with "random" checks but that some checks are needed. He said Tuesday he's looking forward to working with the province.

Unlike most police services, officers in Peel and Toronto follow specific directives when conducting street checks. Peel officers can conduct them only under six defined conditions. In Toronto, the decision to card is far more discretionary. But these minor differences among forces have created a patchwork approach across the province and the country.

Outside of Ontario, the practice has been far less controversial, said Saskatoon Police Service Chief Clive Weighill, president of the Canadian Association of Chiefs of Police (CACP). "I have not heard of this as an issue anywhere else," he said. But over the past three or four months, he said, the uproar in Toronto has forced the issue onto the national agenda. "This has never come up at one of our board meetings yet, but I know for sure it will be coming up at our next meeting in August."

Kathleen Mahoney, a constitutional law expert at the University of Calgary, said there are anecdotes elsewhere in Canada about police targeting certain neighbourhoods or groups, but without written policies, it hasn't been easily addressed.

She said that even for officers to target people in certain neighbourhoods to learn more about local crime trends, despite good intentions, creates legal questions. "Then what you're doing is basically saying, 'If you live here you don't get the same rights as Canadians that live elsewhere get,' " she said.