The legitimacy of street checks relies upon the idea that police officers are not targeting specific groups of individuals based upon their race, place of origin, age, colour, ethnic origin or other factors and that people are providing the information to them on a voluntary basis.
That said, in many cases people may not be aware of the precise limits of a police officer’s authority and may, therefore, comply with a request not because they are willing to do so but because they believe they have no other choice. More importantly, in many of these situations, such a belief may be a reasonable one with the Supreme Court of Canada calling such cases instances of psychological detention.
With more than one million documented cases of carding in Toronto, it seems reasonable to expect that at least some portion of those subject to it had provided their information to the police with the reasonably held belief that they had no other choice but to comply. As of now, it is open for such people to make an application to the courts to seek a remedy under s. 24(1) of the Charter of Rights and Freedoms. If granted, the courts could, theoretically and among other things, order the police to expunge the impugned information from their records.
Waiting for a flood of such applications seems to be the least desirable solution. As such, Toronto police might instead want to consider the alternative yet simple solution of voluntarily removing whatever information they have gathered from a carding stop upon request. By doing so, the courts would save the time and expense of litigating every single potential case of psychological detention and, more importantly, the Toronto Police Service would send the message that it has no interest in profiting from any potential Charter violations.
In addition, by making removal of information available upon request, the police would also have the opportunity to further interact with the public. That would, in turn, offer the public the opportunity to determine whether or not there was anything a particular officer said or did that made the people they were speaking with feel as though they had no other choice but to comply. The police could then use that information to build upon their knowledge and training practices and further ensure that all officers were aware of what they might be saying or doing that could jeopardize their relationships with the public.
Furthermore, by interacting with the people they had originally detained, the police would also have the chance to provide them with materials outlining what they could say or do in the event they ever found themselves in a similar predicament. That information could again help prevent future Charter violations from occurring and could also go a long way in restoring whatever trust police might have lost as a result of the initial event.
The only alternative seems to be for Toronto police to refuse to remove the information they have collected until an authority orders them to do so. However, by refusing to remove such information, the police risk their reputation falling into further disrepute. Simply put, morality demands that people return whatever they have mistakenly received to the rightful owner once they have discovered that it was never actually intended for them. In the case of carding, doing so would confirm that police acted in good faith throughout the process of receiving the information.
As many of us might imagine, community policing is likely a hard enough job as it is. That said, we shouldn’t accord our full sympathy to community policing as it makes no allowances for misunderstandings or human error and instead chooses to stubbornly refuse to rectify its wrongs. Let’s hope that in the coming days, Toronto police will adopt a policy of voluntary removal for those who inform them that they never intended to provide their information. At the very least, it would demonstrate the police force’s commitment to a fair and just process.
A simple solution is present. Both the reputation of the Toronto police and the administration of justice are at stake.
Nick Kaschuk, a criminal lawyer called to the bar in 2003, is the author of several articles and a book and is a sessional lecturer at the University of Toronto.
