John Sewell —
The Board has scheduled a special public meeting on Tuesday April 8, 2014, at 6:00 PM, in the Auditorium at Police Headquarters, 40 College Street, to solicit public input on a draft policy proposed to the Board by Frank Addario.
Toronto Police Services Board to hold a special meeting on carding
The Board retained Mr. Frank Addario, a prominent lawyer with significant expertise in criminal and constitutional law, to provide legal advice in the development of its policy on carding.
To make a deputation at the meeting, contact the Board secretary Ms. Deirdre Williams at 416-808-8094 or, by email at firstname.lastname@example.org , no later than April 7 at 4:00 PM. To provide a written submission (either in addition to or instead of a deputation) contact Ms. Williams.
TPAC’s brief to the Board regarding the proposals of Frank Addario on carding:
Toronto Police Accountability Coalition asks the Board to adopt a policy which ends police random stopping people on the street and questioning them, whether it is called carding, or street checks, or community contacts.
The police service has not brought forth any data indicating that random stops reduce crime in any manner or help solve crime that has already occurred.
End police randomly stopping people on the street and questioning them
The cost of a permitting or encouraging police to make random stops is a substantial breakdown in trust for the public that experiences random stops. No matter how you try to pretty up random stops, trust will not be re-established if random stops continue. It makes more sense to end this bad practice than to try to fix it.
While it is appropriate for police to stop and question individuals pursuant to the investigation of a specific crime, those kinds of stops are not random: they happen because the police have reason to believe the individual being stopped may have some involvement in or information about the specific incident being investigated. As Frank Addario states on page 2, middle paragraph, of his legal opinion to the Board: “if the police reasonably suspect a person is linked to an unfolding (or just committed) offense, they are entitled to stop him or her to conduct a brief investigation.”
The policy we request the Board to adopt is as follows:
This Board does not support the practise of police randomly stopping and questioning individuals whether the practice is called carding, street checks, community contacts, or any other name or phrase. The Board supports police stopping and questioning an individual only if the police reasonably suspect that person is linked to an unfolding or just committed specific offense.
The Chief will put in place practices that conform to this policy and will establish disciplinary actions for situations when officers do not conform to this policy.
If for some reason despite these compelling reasons to end the practice the Board decides to adopt a policy to continue carding, street checks, or community contacts similar to that recommended by Mr. Addario, we request that the following conditions be attached to such a policy:
A. Before it is implemented the police service will engage in a program to give wide notification to youth in the city of their rights if they are randomly stopped by officers. This will include advertisements on television, radio, and social media, as well as through schools, recreation centers, and social services.
B. In making a random stop, the officer will provide a notice to the individual, stating: “I wish to ask you some questions. Canadian law is clear that you are not obligated to answer these questions and that you are free to walk away and leave without answering my questions and you will not suffer any consequences if you do so. Is this clear to you?” The officer will also say these words to the individual.
C. Every person who is randomly stopped will be given a receipt by the officer, giving the officer’s name, badge number, and division, as well as the reason for the stop.
D. The public reports by the chief proposed in Section F.10 of Mr. Addario’s proposed policy will include: the race of those randomly stopped; the value of the practise regarding charges laid and types of crime; and a social audit linking stops to individual officers so that the police service may attend to those officers whose behaviour exhibits possible racial profiling.
Controlling carding: a brief history
The Toronto Star has published many articles over the last decade on carding. The data shows that in 2003 about 200,000 individuals, mainly youth, were randomly stopped and questioned by police with the information taken written on a 208 card (hence `carding’.) The number randomly stopped climbed to more than 400,000 in 2007, then dropped to the range of 335,000 a year and has climbed closer to 400,000 in recent years. See http://www.thestar.com/news/insight/article/1143536–known-to-police-toronto-police-stop-and-document-black-and-brown-people-far-more
The information that the individual must provide police for the 208 card is of a very personal nature: hair style, eye colour, facial hair, birthplace, address, nickname, clothing, body markings m stop, whether one’s parents were separated or divorced, their surnames, whether the person was attending school, information on `associates’ they are with, with an implication that they are part of a gang.
In that article (published in March 2012) the Star journalists note that racial profiling is apparent from the 1.25 million cards recording police stops from 2008 to mid-2011. While blacks account for 8.3 per cent of Toronto’s population, 23.4 per cent of the cards were for people identified as black. The data shows there were 11 patrol areas where blacks were more than five times as likely as whites to be stopped by police; 31 areas where they were three to five times as likely to be stopped, and 24 where they were two to three times as likely. There were no patrol areas where blacks were less likely to be stopped by police as whites.
For young black men aged 15 – 24, the data are even more stunning. The number of black youth stopped by police is 3.4 times larger than the total number of black youth living in Toronto. For brown youth the number of stops is 1.83 times the number of brown youth living in Toronto. The number of white youth stopped is about equal to the total number of white youth living in Toronto.
Concern has been expressed in the courts about carding. In a 2004 Ontario court case, R. v. Ferdinand, Justice Harry LaForme referred to carding, stating:
Although I do not dispute that 208 cards might well be a useful and proper investigative tool for the police; in my view the manner in which the police currently use them make them somewhat menacing. These cards are currently being used by the police to track the movements – in some cases on a daily basis – of persons who must include innocent law-abiding residents.
One reasonable – although very unfortunate – impression that one could draw from the information sought on these 208 cards – along with the current manner in which they are being used – is that they could be a tool utilized for racial profiling.
. I make my observations only to express a profound note of caution. 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. .
In 2002 when the Toronto Star published articles showing that if you were black you were treated more harshly by police in certain circumstances than whites, and also more likely to be ticketed for certain traffic offences, the news was greeted with angry denials by the police chief and a law suit against the Star launched by the Toronto Police Association. The law suit was rejected by the courts.
In 2010 when more articles were published in the Star, authorities seemed entirely unperturbed. Chief Bill Blair implied there was nothing wrong with police discriminating by skin colour although he didn’t put it that way. None of his statements to the Star indicated that the police were doing anything wrong in who they stopped. One reason given was that some crime involved black youth, guns and murders and so why shouldn’t police stop and search black youth? Sure, it might be an inconvenience to the good guys, but, as Lorry Goldstein of the Toronto Sun said, what else should police to do? It’s sort of what you have to put up with if you are young and black.
Another reason given is that filling out 208 cards and recording name, race, age, reason for the stop, time and date, and who the individual is with, allows police to create a profile of the individual. That data can be pulled up when someone is arrested to see who else they might find related to the crime. Police claim to have destroyed several alibis this way.
When more articles appeared in the Star in 2012, the Board took a tougher approach. On April 5, 2012 the Board decided that police must give a carbon copy of the carding information to those stopped, although the chief asked for three months’ time to report on this change. At the July Board meeting he asked for another four months. At the August Board meeting the chief said he would report in November on how a form of receipt or record would be provided to individuals who are stopped by the police. At the November Board meeting the chief said the receipt was not available for the Board to see because it was at the printer. Then the Chief released the receipt he proposed, but it was very general in nature and did not include what the officer had written down on the 208 card. The Board asked the city’s Auditor General to do a study on carding and whether it represented racial profiling.
At the January 2013 Board meeting the chief had more excuses for not having the reports he had promised so the Board asked the city solicitor to report on the legality of carding. A Board sub-committee was set up to work with the chief and propose a course of action to be presented to the March meeting. The city solicitor report on carding has never surfaced. In April the Board again said a receipt would be given to everyone randomly stopped and carded.
The subcommittee made two brief reports of no consequence before it was disbanded. At the June Board meeting, Peter Sloly, deputy chief, reported a new system of carding was beginning on July 1 and officers would give out a general receipt with their name and badge number in what he called Form 307. Whether there was something to replace the 208 form was unclear: police said it was not available because it was at the printer.
With the change in police practise, the City’s Auditor General, who had been asked to study the data about who has been carded in past years in order to make recommendations about future police practice, decided his work made no sense if police were changing the way things are done, so he abandoned his study.
At the October Board meeting deputy chief Peter Sloly said he had been working for 18 months, since February 2012, to make carding more palatable, meeting with an internal committee but without the knowledge of the Board. He presented the PACER Report (Police and Community Engagement Review) which proposed that carding would continue – people would be randomly stopped by officers and asked detailed questions about their lives and acquaintances. The information would be entered into a database and held for seven years. The practise would be called `community engagement’ and the information collected `community safety notes.’ No specific form like a 208 would be used but data would be entered into the database directly from the officer’s notebook (and it could not be easily retrieved on a Freedom of Information Request.) The idea of giving a receipt and copy of the info collected to those carded would be replaced by giving them a business card.
The PACER report states that three lawyers were consulted and concluded PACER conforms to the Charter of Rights and Freedoms and the Ontario Human Rights Code, although these opinions are not part of the report and police have refused to make them public.
The Board scheduled a special meeting on PACER in November 2013, and a few days after that meeting, it announced it had retained Frank Addario to give his advice.
This brief history does not give one much confidence in the ability (or willingness) of the Board to control the actions of the chief or the police service on this issue.
Frank Addario’s advice to the Board
Addario’s legal opinion, and the draft Board policy which he recommended, can be found at http://www.tpsb.ca , and see the two boxes on the right hand side.
He takes the view expressed by the Law Union of Ontario and others before the Board that the police do not have the right to require people to answer questions on random stops. He notes on page 2 of his legal opinion: “The police can ask questions of any person from whom they think they might obtain useful information. They do not require any special power to do this. The citizen, for his part, is not required to answer or participate in the interview. The police do not have a general power of detention for investigative purposes and thus the citizen has the right to walk away.”
Accordingly, in his draft policy he recommends (A.1.h) “Procedures will ensure civilians know as much as possible in the circumstances about their right to leave and the reason for the contact.”
But in the end he seems to propose that random stops by police will continue, and makes recommendations to put the information collected into some kind of database which can’t be traced back to individuals. And of course there is a strong emphasis on more training of police officers.
This Bulletin is published by the Toronto Police Accountability Coalition (TPAC), a group of individuals and organizations in Toronto interested in police policies and procedures, and in making police more accountable to the community they are committed to serving. Our website is http://www.tpac.ca