Speaker's Corner: Carding regulations will shape legal landscape

Over the last year, I’ve been frequently asked, “How do you feel about carding finally being over?” My answer? “It’s not. Carding has been regulated, not eliminated.”

As lawyers and judges, we should take a keen interest in how the government’s new carding regulations will shape the legal landscape concerning the balance of power between police and civilians.

Amid much media fanfare, about a year ago, the Ontario government released its draft regulations on carding and street checks. While there is no official definition, it refers to the police practice of discriminatory, unreasonable and/or arbitrary stopping, questioning and documenting of civilians who aren’t suspected of being either involved in or connected to a crime, and indefinitely storing and sharing their personal identifying information in police service databases.

After being released in October 2015, the government’s draft regulations were subjected to provincewide consultations. This ultimately led the government to refine the regulations, and in March 2016, adopt a final version of the regulations into law. 

Acknowledging that the regulations were largely a response to years of public pressure from Ontario’s black community, upon their adoption, Ontario’s then-minister of Community Safety and Correctional Services, Yasir Naqvi, stated: “Arbitrary and race-based stops to collect and store personal information based on nothing more than the colour of one’s skin are illegitimate, disrespectful and have no place in our society.”

Having since switched ministerial roles, now Attorney General Naqvi’s comments echoed the position of human rights organizations and institutions that for years proclaimed the practice was not only intolerable but outright illegal. This loose consortium of allied advocates included the Ontario Human Rights Commission, the Canadian Civil Liberties Association and the Law Union of Ontario, among others.

These organizations honourably added their voices to the calls from the African Canadian community to end carding on the basis that it had evidenced itself to be an expression of systemic anti-black racist policing, and also featured violations of Charter and Human Rights Code-protected rights, namely the rights to be free from unjust incursions from the police.

This advocacy was bolstered by findings from the Toronto Star, which, in 2012 reported that, between 2008 and 2011, the number of young black men carded by Toronto police was 3.4 times higher than the population of young black men in the city. These findings were followed by a devastating and widely read 2015 Toronto Life article by journalist Desmond Cole, entitled: “The Skin I’m In.” In his article, Cole recounts his experiences of being regularly stopped, questioned and/or documented by police.

The Star’s carding findings and Cole’s article marked pivotal turning points in the public campaign to end carding. Before they were published, however, at least one Ontario Superior Court Justice, H.S. LaForme, raised serious concerns about the practice, stating in the 2004 case of R v. Ferdinand:

[19] One reasonable […] impression that one could draw from the information sought on these 208 cards […] is that they could be a tool utilized for racial profiling.
[20] […] If the manner in which these 208 cards are currently being used continues; there will be serious consequences ahead. They are but another means whereby subjective assessments based upon race — or some other irrelevant factor — can be used to mask discriminatory conduct […].    

[21] This kind of daily tracking of the whereabouts of persons — including many innocent law-abiding persons — has an aspect to it that reminds me of former government regimes that I am certain all of us would prefer not to replicate.

Before and since Justice LaForme’s apt observations, carding has been challenged by members and organizations from the African Canadian community and its allies as being a cause and confirmation of racial profiling.

Now, more than a decade since Ferdinand, the Ontario government has finally put regulations in place to address this practice.

The new regulations will come into full effect on Jan. 1, 2017. They feature an explicit ban on the use of race or place (i.e., being in a “high-crime area”) as a stand-alone justification for carding. Officers will be required to inform individuals that they have the right to know why they are being stopped and whether they have a legal obligation to speak with the officer(s). The regulations will also require officers to provide a receipt of the interaction, and they mandate that officers indicate the perceived racial background of the civilians they card.

These are welcome advances that increase protections of black, indigenous and racialized targets of this practice.

The regulations create a new realm of jurisprudential uncertainty that lawyers, judges and jurists will be tasked with resolving. This is because the regulations will arguably spark a new generation of Charter litigation that will create and force us to confront new constitutional questions — or old questions in new ways. For instance, how exactly will the regulations factor into interpretations of specific protections guaranteed under the Charter and the Criminal Code? Will the unintended negative consequences of the regulations be resolved in ways that expand or restrict civilians’ rights vis-a-vis the police? How will the regulations enhance or hinder the power of judges to elucidate or facilitate civilians’ constitutional protections from the awesome powers of the state?

Whether our answers enhance accountability, transparency, oversight and public confidence in police remains to be seen. 

As such, the new regulations don’t mark carding’s end for blacks or anyone else but rather the beginning of a new and uncertain turn toward a fresh attempt to achieve greater justice for all civilians in Canada.

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Anthony Morgan is an associate at Falconers LLP.