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globe editorial

Chief Bill Blair reads a paper before the start of a meeting of the Toronto Police Services Board in Toronto in March.Chris Young/The Globe and Mail

The difference between a police state and a free and democratic one can be quickly illustrated by describing two possible encounters between a citizen and a cop. In a free country like Canada, when a police officer asks you questions but has no reason to suspect you broke the law, you are allowed to decline to answer. You can even be rude about it, if that's your thing. The officer has to walk away.

In a police state, you get in trouble for not answering questions, because you have no right not to. Your name and description are registered in a database, along with personal information and names of "known associates," such as your friends. After your humiliation is complete, you are released.

Canada is not a police state but the latter scenario happens all too frequently in Toronto, because of a controversial policy dubbed "carding." It is a badly conceived policy carried out by police officers who are undertrained and lack respect for citizens' constitutional rights.

Thankfully, because Canada is not a police state, the innocent victims of the worst aspects of carding have recourse to the courts. Mutaz Elmardy successfully sued the Toronto Police Services Board and a Toronto constable who detained him illegally and punched him in the head twice when he grew agitated by what was clearly a violation of his rights. An Ontario Superior Court judge awarded Mr. Elmardy $27,000 on May 7, most of it in punitive damages.

We wrote last week that the ruling was part of a general change in attitudes toward police. The benefit of the doubt that courts and civilian oversight bodies once gave the police has been eroded by all the citizen videos available online that show officers needlessly escalating routine contacts into violent confrontations.

It's not just a U.S. problem. There is a smorgasbord of videos of Canadian police officers slamming suspects' heads into the hoods of police cruisers, kicking docile suspects in the head, and punching mildly resistant suspects in the face.

There is also a surveillance video from 2011 of Toronto police officers carding four innocent black teenagers and punching and arresting one of them for refusing to co-operate, as was his right. The police subsequently and spuriously charged all four of the teens with assaulting police, while the one who spoke out was also charged with resisting arrest and uttering a death threat. All charges were later dropped.

Mr. Elmardy went through a similar experience. He was walking home from an evening service at his downtown mosque in 2011 when two officers passing by in a police cruiser decided to card him. Because he failed to display sheepish passiveness and declined to answer questions, he was handcuffed, punched in the face, searched and left lying in the January cold without his jacket for close to 30 minutes before being let go.

The judge in Mr. Elmardy's case said in his ruling that he made "no findings about the constitutionality or wisdom of the process of carding." But the policy was at the heart of the trial, and the judge added that it appeared to have, in Mr. Elmardy's case, increased "the risk of hostile interactions between police and innocent members of the public." He's right.

Police use carding as an intelligence-gathering tool in neighbourhoods that are identified as high-risk for gang violence. They approach innocent people constantly and ask for their names and addresses, who their associates are, and for personal information, such as whether their parents are divorced or together. The police want to get names into a database on the unsavoury assumption that doing so might help in future criminal investigations. The people they approach – a disproportionate number of whom are young black men – either co-operate or risk trouble.

There is nothing wrong with police talking to citizens or asking them questions – if it is done properly. Last spring, after consulting with the public, the Toronto Police Services Board adopted a progressive policy requiring officers who initiate contact to inform the subject that they are under no obligation to respond. The board also said police could only initiate a contact as part of an ongoing investigation, not because of the neighbourhood a person happens to be in, and could not collect irrelevant personal information. The board also ordered police to stop carding random citizens merely to fill a quota.

It was the right thing to do. The former chief of police, Bill Blair, said he would do as ordered by the board, but then he started hedging. Suddenly, this spring, the Toronto police made a backroom deal that allows them to continue carding the old way, with the blessing of the new chief of police, the board and the mayor, John Tory. Like the punches to Mr. Elmardy's face, it was another betrayal of people's diminishing trust in the police.

We'll write more on this this week, and talk about ways police can rebuild trust.

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