On Monday, November 18, the Toronto Police Services Board will hold a Special Public Meeting on “Police Carding and the Issue of Profiling” and on the Police and Community Engagement Review (PACER) Report.
These are the Law Union’s submissions on the Pacer Report and on carding, available also for download as a PDF.
I – THE PACER REPORT AND THE LEGALITY OF STREET CHECKS
The Police Services’ legitimacy in continuing with the practice of “street checks” or “carding” is dependent on demonstrating two minimum requirements:
That the practice is necessary for legitimate “policing reasons” and is carried out in accordance with the principles prescribed in Section 1 of the Ontario Police Services Act RSO 1990.
That the practice does not violate the Canadian Charter of Rights or the Human Rights Act and is otherwise lawful.
A. LEGITIMATE POLICING REASONS AND SECTION 1 OF THE POLICE SERVICES ACT.
The term “legitimate policing reasons” as relied on the Pacer Report to justify the need for “street checks” or “carding” is amorphous.
The Pacer Report claims that there is a fundamental need for the collection of personal data and other personal information from law abiding persons who have done nothing which would otherwise justify engagement by the police.
There is a clear onus on the Police Service not only to convince the Board that there are compelling bona fide reasons to engage in “street checks” or “carding” but also that such reasons are legitimate and that they do not violate the Charter of Rights or the Ontario Human Rights Act.
From a purely intelligence gathering perspective the police might find it useful to know absolutely everything about everyone at all times. Clearly this Board would not permit such a scenario. The question for the Board therefore is where to draw the line on intelligence gathering operations.
The Law Union of Ontario submits that “street checks” and “carding” as presently conducted and as envisioned by the Pacer Report are neither legitimate nor justifiable.
It is further submitted that the practice of “carding” both at present and as envisioned by the Pacer Repor violate the following principles mandated by section 1 of the Police Services Act:
The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.
The need for cooperation between provinces of Police Services and the communities they serve.
The need for sensitivity to the pluralistic, multiracial and multicultural character of Ontario society.
B. VIOLATION OF THE CHARTER OF RIGHTS AND FREEDOMS AND THE ONTARIO Human Rights Act.
In our earlier submissions to the Board (November 12, 2012, January 23, April 24, June 20, 2013), the Law Union of Ontario set out our position that the practice of “carding” or “street checks” violates the Charter of Rights, the Ontario Human Rights Act, and provincial and municipal privacy legislation.
The recommendations set out in the Pacer Report fail to alter the fundamental violation of these provisions.
The approaching, stopping, and questioning of persons solely for the purpose of a “street check” in and of itself violates the Charter of Rights in several respects as outlined in our earlier submissions. The fact that such intrusions disproportionately involve male, black, youth as evidenced by reports from Communities and the Toronto Star findings are a clear violation of these safeguards. Street Checks are discriminatory and often race based and as such violate the Ontario Human Rights Act.
While the Pacer Report and its recommendations are an attempt to modify the practice, such do not and cannot legitimize “street checks” because the practice itself is illegitimate.
II. THE LEGAL FOUNDATIONS CITED IN THE PACER REPORT.
At pp 33-37 the Report attempts to justify “street checks” in terms of its legality by citing legal opinions from three unnamed “eminent jurists” all of whom have apparently concluded that there is nothing “legally wrong” with the practice.
To date the Police Service has refused to make these legal opinions available for scrutiny.
Further we are advised that at a private consultation held by the Police Service on October 23, 2013 Mr. Paul Copeland, a member of the Law Union was quoted as being of the view that “street checks” were lawful.
This was simply untrue and Mr. Copeland has so stated in his letter to Chief Blair of October 29, 2013.
Whether or not this assertion apparently made by both Chief Blair and Deputy Chief Sloly was an attempt to mislead and placate persons at the consultation it should be retracted by a letter from Chief Blair to all who were present at the consultation.
It should also be noted that the Law Union of Ontario, whose members are often in daily contact with various communities concerned about “street checks” and have spent considerable time and effort before this Board on the issue, was not invited to the private gathering.
We request that the Board direct Chief Blair to make the three opinions of the “eminent jurists” public in order that there be a further and fairer discussion of the issue of legality.
Ill. THE POLICE SERVICE BOARD LEGAL OPINION
At its January 23, 2013 meeting, the Board appeared to recognize its obligation, pursuant to the Justice Morden Report, to ensure that the policy and practice of “carding” did not violate the Charter or Human Rights legislation. The Board requested the City Solicitor to provide a legal opinion on this issue for the March 27, 2013 meeting. This legal opinion has still not been provided and the delay seems indicative of the Board’s lack of commitment to the public’s concern and apprehension of this issue.
It is unclear whether the City solicitor’s opinion is still in the making or whether the Board has withdrawn its request and is simply going to rely on the opinion of the three lawyers retained by the Police Service.
We request that the Board make its intentions known and advise when the opinion will be completed.
The practice of “carding” or “street checks” is a violation of the Charter of Rights and Freedoms, the Ontario Human Rights Act and privacy legislation both as it presently exists and as envisioned by the Pacer Report. The Board is urged to suspend the practice of “carding” and “street checks” until the Board comes to its own independent conclusion on this issue.
That the Board expedite the completion of the legal opinion as directed at its January 23, 2013 meeting.
IV. ADVISING PERSONS STOPPED THAT THEIR COOPERATION IS VOLUNTARY
Throughout the Pacer Report the authors continually stress that cooperation by persons stopped on a “street check” is purely voluntary on the part of such persons.
Such assertion seems to be restated throughout the Report in order to buttress the Police Services conclusion that “street checks” are lawful.
However, when the Law Union recommended in its April 24, 2013 submission to the Board that as an interim measure the Board direct that when a person is stopped for a “street check” the officers must immediately advise such person that the cooperation is voluntary, such recommendation was not accepted.
When a person, particularly a young person is stopped by an officer for a “street check” or “carding” the power imbalance is overwhelming.
It is difficult to imagine how the Chief or the Board could oppose such a recommendation. The officer is the legal representative of the state and presumably is aware that the cooperation of persons stopped is voluntary. Many individuals stopped are either unaware or unsure of their right not to cooperate. Many more are hesitant to assert their right not to cooperate because they fear reprisal by the officer as we have outlined in our previous submissions.
The only possible reason to oppose our recommendation is the fear that some persons may actually assert their right not to cooperate. Clearly this fear is not a valid reason for law enforcement officers refusing to simply advise persons of what the law is. This is particularly so in light of the Pacer Reports quest for “community engagement” and its repeated reliance on the fact that such cooperation is voluntary.
As an interim measure only the Board should forthwith direct that Chief Blair issue a standing order or directive mandating that officers immediately advise persons stopped for a “street check” that their cooperation is voluntary.
We recommend that the following statement be used by officers:
I am a police officer.
I would like to ask you some questions.
You have the right to refuse to answer my questions and you are free to go.
The Law Union of Ontario is not attempting to discourage persons from cooperating with the police. To the contrary, we subscribe to Sir Robert Peel’s principles on policing citing that public cooperation is essential to effective law enforcement.
To recognize always that the power of the police to fulfill their functions and duties is dependent on public approval of their existence, actions and behavior, and on their ability to secure and maintain public respect.
To recognize always that to secure and maintain the respect and approval of the public means also the securing of willing cooperation of the public in the task of securing observance of laws.
To recognize always that the extent to which the cooperation of the public can be secured diminishes, proportionately, the necessity of the use of physical force and compulsion for achieving police objectives. [Emphasis added]
— Sir Robert Peel: Principles of Policing on the Creation of the London Police Constabulary, 1829.
CHAIR MUKHERJEE MEMORANDUM
The principles and procedures recommended by the Chair are a significant step in the right direction insofar as the Ontario Human Rights Act is concerned. However, the memo fails to address violations of the Canadian Charter of Rightsand Freedoms.
In fact apart from a passing reference to the Police Services Act on page 4, the Charter is not even mentioned in the Chairs memo.
This is a major failing of the memo.
Justice Morden in his June 29, 2012 Report into INDEPENDENT CIVILIAN REVIEW INTO MATTERS RELATING TO THE G-20 SUMMIT cites sections 1.2 and 31(1) finds as follows:
… The purpose of the provision is rather to remind those acting under the Police Services Act of the constant bearing of the Charter and the Human Rights Code on the performance of their duties. This is critically important because the exercise of so many police powers, for example those of arrest, detention and search and seizure engage rights that are protected by the Charter and the Human Rights Code.
That having been said however we make the following preliminary comments:
Recommendation #2 refers to bona fide reasons as a fundamental underpinning for the gathering and retention of “contact information”. We submit that rather than an amorphous categorization, i.e. “bona fide reasons”, the specific reasons or specifications for the collection and retention of information from persons who are simply out and about and have done nothing wrong should be enumerated and spelled out in clear terms.
Recommendations #3 and 5 again refers to the terms “bona fide investigative reasons” which seems to suggest that persons information will only be collected and retained where such information is demonstrably relevant to specific police investigations.
We are confused as to the meaning of these two recommendations. If they only refer to the retention of information they are inadequate. At a minimum, an officer should only approach a person for the purpose of a street check if the officer has an honest and reasonable belief that such person’s information will be demonstrably relevant to a specific, ongoing police investigation.
At a public (by invitation only) meeting held on October 23, 2013, at the Toronto Police Headquarters, Chief Bill Blair and Deputy Chief Peter Sloly incorrectly stated that Law Union of Ontario member Paul Copeland has claimed the practice of “carding” by the Toronto Police is legal. Below, Paul responds in an open letter to Chief Blair and Deputy Chief Sloly.
October 29, 2013
Chief Blair and Deputy Chief Sloly
Toronto Police Service
40 College St
Dear Chief Blair and Deputy Chief Sloly:
Last week I received information that at a public (by invitation only) meeting held last Wednesday at the Toronto Police Headquarters, you both said that you had advice, or an opinion from me, that the practice of “carding” by the Toronto Police was legal.
The PACER Report mentioned opinions the Toronto Police had obtained from “three eminent jurists”. The Report said that the three lawyers were unanimous in stating that “the police officers may, for legitimate policing reasons, approach members of the community and seek their voluntary cooperation in responding to questions seeking personal data and other information collected for law enforcement purposes. There is nothing legally wrong with collecting, using or retaining that information.”
Attempts have been made to have those three legal opinions released by the TPS or the TPSB. So far the opinions have not been made public.
I am enclosing the partial transcript from the Wednesday meeting. I am distressed that at a public meeting you would appear to interchange what you describe as my opinion (or advice) with the three legal opinions that were obtained from the three eminent jurists by the TPS. I presume when you mentioned advice or an opinion from me you were referring to the Toronto Star article I wrote, or to the material I presented to the TPSB last winter.
“In general, the police can ask you any questions they want but you do not have to talk to them, show them your identification or answer their questions”.
When I made the presentation at the Toronto Police Service Board on January 23, 2013 I presented not only the Know Your Rights material, I also read and presented the enclosed one and a half page Speaking Notes. In those speaking notes I said that I would leave it to others to speak “about the propriety and constitutionality of the police gathering and storing information obtained by police officers in Toronto using the Field Information Reports.”
I would like to add that I was surprised that the Law Union was not invited to your consultation. The Law Union of Ontario is comprised of lawyers and law students who are actively involved with dozens of community groups in the city and it has devoted much time and effort on the “carding” issue. It is puzzling why you decide to exclude them from last week’s consultation.
It is my view that the practice of carding as carried out by the Toronto Police Service violates the Charter Rights and Freedoms of those persons who are stopped by the police and in the discriminatory manner in which the carding is done violates the Ontario Human Rights Act.
Please do not, in future, state that my view of the “carding” process is in line with the three opinions that have been obtained from the three unnamed eminent jurists.
Paul D. Copeland, C.M. LSM
Cc: Howard Morton, Q.C.
Law Union of Ontario
Over the last year, the Law Union of Ontario has made four submissions to the Toronto Police Services Board explaining why its practice of carding is unlawful. Read and download those submissions below.
1. The Law Union of Ontario remains of the strong view that both the Toronto Police Service policy with respect to “carding” and the manner in which it is carried out violate the Canadian Charter of Rights and Freedoms and the Human Rights Code. […]
7. Given that the Board has had this issue before it for over one year and seems unable to respond to public concern and anger in a timely fashion, we urge the Board to direct Chief Blair to suspend the practice of “carding” until the Board reaches its conclusion with respect to whether the practice violates the Charter and Human Rights legislation.
8. In the event that the Board is unwilling to suspend “carding” until these issues have been resolved we urge the Board to forthwith direct Chief Blair to issue a standing order or directive mandating that all officers caution persons approached for the purpose of 208 carding or street checks, advising such persons that they have the right to refuse to answer questions and are free to go.
The issue is not whether the use of Form 208 and the manner in which it is deployed are necessary in order that the TPS can meet its operational requirements.
The issue is whether such use and deployment are lawful.
The Law Union of Ontario continues to maintain that both Form 208 and the manner in which it is filled out ie, street checks are used, are violations of the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code, and municipal and provincial privacy legislation.
Throughout the history of the common law many unlawful investigative stratagems have been used by police officers in free and democratic societies. These stratagems were often carried out under the guise of being necessary due to “operational requirements” to facilitate criminal investigations and prosecutions or intelligence gathering operations.
Some examples of such conduct are:
Using physical or psychological force to obtain confessions or statements.
Unlawful entry on property or buildings without a search warrant or exigent circumstances.
Unlawful wiretap or other interception of communications without judicial authorization.
The unlawful removal and replacement of private property for investigative purposes.
Even prior to the Charter of Rights and Freedoms such conduct was held by Courts to be unlawful requiring a cessation on their use. Under the Charter of Rights such practices have been held to be violations of the supreme law of Canada.
4. The Law Union of Ontario submits that both the design of Form 208 and the manner in which “carding” is deployed are clear violations of both the Charter of Rights and Freedoms and the Human Rights Code.
5. In labeling street checks as form of “community engagement Police claim they are a form of community policing. In reality, street checks are carried out as intelligence gathering of personal information from individuals who are not engaged in criminal or antisocial behavior and who are conducting themselves in a law abiding manner.
6. Many individuals, particularly youths, are unaware that they have the right to walk away. They feel intimidated and obliged to respond, often arising out of the inherent power difference between the police and youths. Even if individuals are aware of this right they often fear reprisal of one form or another if they attempt to exercise their right.
3. The design and use of Form 208 and in particular the manner in which the practice of “Carding” is deployed are both clear violations of the Canadian Charter of Rights and Freedoms. Specifically the individual rights guaranteed by Sections 8 and 9 of the Charter are clearly infringed and denied and on a case by case analysis are violations of Sections 2, 7, 10 and 15 of the Charter.
4. The manner in which this so-called form of “community engagement” is deployed warrants scrutiny by the Board. We have authenticated reports from individuals who state that when they decline to either provide identification or provide the information set out in Form 208 as in the absence of special circumstances is their absolute right to do, officers then resort to illegitimate ruses and stratagems such as the following:
a) Officers falsely state that they are involved in a criminal investigation and that the individual matches the description of the suspects. It should be noted that some officers may wrongly believe that by so stating they bring themselves within the broader scope of “investigative detention” as set out in R. v. Mann.
b) Officers attempt to circumvent and nullify the individuals assertion that they do not wish to identify themselves or provide the Form 208 information by implicitly threatening remarks such as:
i. What are you trying to hide!
ii. What do you have in your pocket!
iii. Do I have to take you to the Police Station?!
c) Officers engage in “pat down searches” of the individual which are clearly unlawful.
5. The approaching and stopping of persons without lawful cause followed by a request or demand for identification and answers to the information sought by Form 208 clearly constitute “detention” within the meaning of the Charter of Rights. Such demands or requests for identification and information clearly constitute a “search” within the meaning of the Charter.
6. In the overwhelming majority of cases the persons which the police seek to “Card” are doing nothing that would lawfully warrant such police intervention.
7. Not only is the practice of “Carding” in such a manner an unlawful violation of the Charter, it has resulted in community apprehension, sentiment and fear particularly in marginalized communities which undergo a disproportionate “Carding” presence.
8. Further, individuals who are apparently targeted for “carding” are disproportionally racialized youth. The practice is viewed in these communities as racist policing. Often these are the very communities in which the police seek and need cooperation in the pursuit of legitimate law enforcement and criminal investigation purposes.
After nine weeks, the 30,000 California prisoners protesting the conditions of solitary confinement suspended their hunger strike today. California holds nearly 12,000 people in extreme isolation cells with no windows and no access to fresh air or sunlight. The United Nations condemns the use of solitary confinement for more than 15 days as torture, yet many people in California state prisons have been imprisoned in solitary confinement for 10 to 40 years.
The Prison Justice Committee of the Law Union is committed to reducing the destructive impact of harsh criminal justice policies on the lives of individuals, families and communities. We are concerned about the long-term impact of appalling conditions inside prisons in both the United States and Canada.
As the Ashley Smith case has taught Canadians too well, solitary confinement is an inhumane and degrading policy that accomplishes no rehabilitative purpose. We condemn the use of extended solitary confinement in the strongest possible terms.
The fight is not over. Prisoners should not be forced to place their health and very lives at risk in order to protest torture. We call on California Governor Jerry Brown and the California Department of Corrections and Rehabilitation (CDCR) to respond immediately to conditions that have lead to the statewide hunger strike in California prisons.
We call on Canadian Prime Minister Stephen Harper to listen to the voices of the California prisoners. Canada’s increasing reliance on solitary confinement, particularly targeting women and Aboriginal prisoners, must end.
While we welcome the recent commitment to legislative hearings and congratulate the strikers for the changes they have inspired, we join the hunger strikers in demanding that California fully implement the prisoners’ five core demands, which are:
End Group Punishment & Administrative Abuse.
Abolish the Debriefing Policy, and Modify Active/Inactive Gang Status Criteria.
Comply with the US Commission on Safety and Abuse in America’s Prisons 2006 Recommendations Regarding an End to Long-Term Solitary Confinement.
Provide Adequate and Nutritious Food.
Expand and Provide Constructive Programming and Privileges for Indefinite SHU Status Inmates.
The Law Union of Ontario is a coalition of over 200 progressive lawyers, law students and legal workers. For more information visit: http://prisonerhungerstrikesolidarity.wordpress.com