Carding and civilian control of police

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Carding, the infamous police practice of stopping individuals for questioning, is back with a vengeance in Toronto.

Its devastating impact on the lives of thousands of Torontonians is vividly and brilliantly illustrated by Desmond Cole's piece in this month's Toronto Life: "The Skin I'm In: I've been interrogated by police more than 50 times -- all because I'm black."

A 2010 exposé by the Toronto Star showed that carding was in widespread use, and inflicted on Black people at disproportionately high rates.

After years of community campaigning, in April 2014 the Toronto Police Services Board finally found some backbone and adopted a policy with requirements that officers:

  • can now only question people for a public safety reason;
  • must inform them of their right to walk away; and
  • must issue a receipt to those individuals.

That right to walk away is, of course, the Canadian Charter of Rights and Freedoms-protected right to "life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

It's a right that the courts have vigorously upheld. The Ontario Court of Appeal said that in R. v. Calderon, where a search of a car was found to be unlawful:

"An officer cannot exercise the power to detain on a hunch, even a hunch borne of intuition gained by experience."

And the Supreme Court of Canada, in R. v. Mann, where marijuana was found on a person with a description matching a suspect's, held that:

"There must be a clear nexus between the individual to be detained and a recent or ongoing criminal offence."

Carding violates that fundamental right unless it is made absolutely clear that citizens can walk away. The overwhelming police power to inflict nasty consequences necessarily creates a coercive environment unless that clarity is present.

Until the April 2014 policy was adopted, the Board had tacitly condoned the massive abuse of that right by failing to rein in carding.

Even after that policy was adopted, Toronto Police Chief Bill Blair prevaricated, saying he needed time to define "public safety reason" for his officers, and a study revealed the Board's policy was being largely ignored by front-line officers.

In the meantime, after a municipal election was held, the composition of the Board changed, and, last February, it lost its nerve and asked a retired judge to mediate.

That sent a strong signal to the police that they had won.

The Board ceded its authority to establish policies for the effective management of the police force and directed the chief of police to a mediator charged with figuring out where the common ground between the chief and it might be.

The results of the mediation, as confirmed by the Board's decision earlier this month, were not surprising: all three requirements are gone, as now confirmed by a 5-2 decision of the Board (Councillor Shelley Carroll and provincial appointee Marie Moliner opposed).

In response, the Law Union, Ontario's progressive lawyers and legal workers' organization, and many other deputants, were furious.

In its angry brief to the Board it stated:

Carding is, and has always been, about intelligence gathering. It is not about building community trust.

Call it by whatever euphemism you will, but the substance of the Board's proposed new carding policy is about the perpetuation of a general intelligence gathering scheme that has been discredited, that has sown deep division and distrust in the community, and that has never been shown to actually enhance public safety.

If the objective is to rebuild the community's trust, lapsing into old ways of doing policing is not going to accomplish that.

Board Chair Alok Mukherjee admitted to the media that he was of the view that the chief had been insubordinate but, wishing to avoid a lengthy legal battle, instead capitulated.

"I'm a practical man," the Star quoted him as saying. "Nobody wants to go to war with the chief."

The Board, now severely weakened, has appointed a new chief known to support carding.

In theory, the Board's oversight of the police provides assurance that police activities are accountable to the community they are mandated to serve and protect.

The powers given to police -- to use force, and to arrest and detain citizens  -- are so readily abused (as carding so vividly illustrates) that effective civilian control of police is a necessity.

In practice, though, effective control is often illusory.

Board members are politically appointed -- partially by the provincial government, and partially by City Council.

Police -- and their union -- have huge political influence, and don't hesitate to act in a heavy-handed fashion when threatened.

When, on occasion, a Board member has had the courage to stand up to them, it often brings severe consequences:

  • John Sewell, Toronto's mayor and Board member, was defeated in his bid for re-election in 1980. He had established himself as a leading critic of Toronto's police. Sewell says:

"The police were very public about the fact that we had to get rid of Sewell. They actually had signs in police stations saying, flush Sewell down the drain."

  • Olivia Chow was forced to resign her position on the Board after she voted against appointing the now-infamous Julian Fantino as chief. The excuse, was this, according to a National Post profile:

Depending on whom you believe, during a demonstration, Chow either spoke to police in an effort to be helpful, or violated her position on the police board by interfering in their operations.

The police union demanded she resign; a report was prepared, and Chow stepped down minutes before the contents were to be revealed.

She'd lasted barely a year.

  • Alan Heisey, appointed chair of the Board, called for a review of the internal police complaints system, led the charge to open the police budget to greater public scrutiny. He found himself the target of a smear campaign. After 18 months, a retired judge found that his comments at a party were "grotesquely misconstrued" by a veteran sex-crimes detective in an internal police memo, and was cleared of any wrongdoing. Said the judge:

"The leak of the confidential police memo was manifestly calculated to damage Mr. Heisey's reputation and undermine, if not destroy, his ability to continue as chair of the Toronto Police Services Board."

Toronto's police board was scathingly criticized, after the widespread illegal actions of police during 2010's G20, by John Morden, a former Superior Court associate chief judge. In his 357-page report, he noted: 

"complacency in allowing the Chief to decide what information it should or should not receive on operational or other matters is unacceptable and shows a misunderstanding of (its duties)" [p. 179-180].

As former Board member Adam Vaughan noted, to the Morden inquiry:

"We were raising our hands every now and then but you certainly got the feeling it wasn't welcomed to ask questions … let alone explore, let alone create policy because you are just being shut out of the process" [p. 194].

And, commenting on the Morden report to the Globe and Mail, Vaughan stated:

"The problem is not just diffidence on the part of the board. It is excessive coziness between some members of the board and the police command. I tried to get answers about the G20, but every time you pushed you got slapped down."

For most Board members, it seems, "excessive coziness" is preferable to standing up to the police -- particularly given the consequences faced by others who've stood up in the past.

That's why carding is back.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities, and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

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