Submissions to Toronto Police Services Board Re: Community Contacts Policy
The LUO’s Stop Racial Profiling Subcommittee made the following submissions (also available for download) to the Toronto Police Service Board April 24, 2014.
The Toronto Police Service engaged in the general intelligence-gathering practice known as “carding” for many years without any policy direction from the Board. This practice was a systematic violation of the rights of people in our communities, and especially of racialized youth, and it undermined the public’s trust and confidence in the police service and thereby impaired public safety.
The Law Union of Ontario welcomes the considerable work done by the Board to rein in this practice. The Chair’s report to the Board concerning the proposed new Community Contacts Policy indicates that the policy now seeks to take a rights-based approach to how police interact with members of the public. This is the correct and necessary approach.
However, in measuring the proposed draft policy against this approach, it is apparent that some further modifications will be required to ensure a full stop to the systematic police violation of people’s Charter rights, human rights, and privacy rights through the practice of carding. The policy still allows the police to arbitrarily stop of members of the public as part of a general intelligence-collection exercise in certain circumstances, notwithstanding that the Board’s intention appears to be to put an end to this kind of conduct.
Accordingly, the Law Union submits that the Board should approve the proposed Community Contacts Policy subject to certain further modifications, as described in these submissions.
1. Contacts in the context of a specific investigation
Articles 4(a)(i) and 4(a)(ii) of the proposed Community Contacts policy justify the initiation or recording of contacts for the purposes of: (i) investigating a specific offence, or (ii) preventing a specific offence.
The policy should also require that there be an honest belief on the part of officers initiating contacts that there is some nexus or connection between the person contacted and the specific offence, in order to reduce the potential for misinterpretation or abuse of the policy
Under the present practise of carding, officers have often falsely advised persons that they are investigating a break-and-enter or some other offence in the community, as a pretense for stopping and carding a person. Some officers expand on this ruse by advising a reluctant individual that they “fit the description “of the perpetrator. The use of this kind of tactic (and other tactics) can psychologically compel the person, particularly a young or marginalized person, to comply with the carding process, even if they are aware they have the right not to do so and do not wish to participate.
RECOMMENDATION No. 1
That Articles 4(a)(i) and 4(a)(ii) be amended to read as follows:
(i) Investigating a specific offence, where the officer has an honest belief that the person approached has some connection to the offence whether as a suspect or as someone who has helpful information with respect to the offence; and
(ii) Preventing a specific offence, where the officer has an honest belief that the person approached has some connection to the offence whether as a suspect or as someone who has helpful information with respect to the offence;
2. Contacts in relation to “an identifiable, systemic criminal problem.”
Article 4(a)(iv) of the proposed policy provides that:
a. Valid public safety purposes justifying the initiation or recording of Contacts are:
iv. Collecting intelligence relating directly to an identifiable, systemic, criminal problem and pursuant to a Service or Division – approved initiative.
This purpose seems to be in conflict with article 4(b)(i), which states:
b. Purposes that do not justify the initiation, continuation or recording of Contacts are:
i. Gathering personal information for use in unspecified future investigation [emphasis added].
Article 4(a)(iv) is also inconsistent with the overall rights-based approach articulated by the Board.
Toronto currently could be said to suffer from several “identifiable, systemic criminal problems” which have become the subject of initiatives approved by the Toronto Police Service. Some examples are guns, gangs, drugs and youthful offender delinquency. TAVIS is an example of an existing police initiative specifically directed at violence in our communities. The criminal problems targeted by such initiatives can be said to relate to unspecified future investigations.
The Toronto Police Service has previously attempted to justify the practice of carding or street checks on precisely this kind of intelligence-gathering rationale. Nevertheless, the Board has never sought or received any empirical evidence that carding and the collection of irrelevant personal information is an effective means of addressing these systemic criminal problems. On the contrary, it is apparent that the practice of carding has increased risks to public safety by undermining public confidence in the police.
There are systemic criminal problems in our communities. However, carding is not the solution to those problems, and it may actually make these communities more difficult to police by alienating the members of these communities.
As worded, article 4(a)(iv) would allow the Toronto Police Service to continue the existing practice of carding by simply declaring that they are doing so in relation to an “identifiable, systemic criminal problem.” It would allow an exception to the prohibition against arbitrary stops of community members for general or unspecified investigation purposes. It would allow police to continue to arbitrarily stop and harass members of the community and violate their Charter rights, human rights, and privacy rights, even though the Board has declared that these kinds of practices are unacceptable and that it will be implementing a rights-based policy. This would continue the social damage done to communities, and further erode public trust and confidence in the police service. This does not appear to be what the Board has intended in its policy, but that is how the policy could be interpreted and applied.
In order to ensure the policy is consistent with the rights-based approach articulated by the Board, and to ensure that Contacts are not in fact used in any “unspecified future investigation,” paragraph 4(a)(iv) should be deleted. Paragraphs 4(a)(i) and 4(a)(ii) are sufficient to allow the initiation or recording of Contacts in the context of a specific offence or investigation.
RECOMMENDATION No. 2
That Article 4(a)(iv) be deleted from the Policy.
3. Contacts in the context of ensuring a community member is not at risk
Article 4(a)(iii) states that the initiation or recording of Contacts is justified for the purpose of “ensuring the community member who is the subject of the Contact is not at risk”.
This additional provision is both unnecessary and overbroad, and may allow the continuation of practices that are inconsistent with the Charter and the Human Rights Code.
Article 4(a)(iii) creates an overbroad category of individuals who may be subject to such stops and does not provide appropriate guidance to police officers as to what level of risk is needed to approach an individual for the purposes of initiating and recording his or her personal information. The Law Union does not question the Toronto Police Service’s duty to share information with community residents who might be at risk and/or targeted as victims of crime. Indeed, the Law Union believes that it is the duty of the police to share information with community residents about their activities, in particular to individual community members who might be potential victims of criminal activity.
The Law Union, however, questions the need to collect and retain personal information related to such interactions when they are not related to the prevention of or investigation into a specific offence. This kind of provision could allow such stops to be used as a pretext for carding, and may discourage actual persons at risk from seeking the assistance of the police.
Paragraphs 4(a)(i) and (ii), with the modifications recommended above, already allow police officers to continue to approach individuals who may be at risk as victims of criminal activity. Additionally, individual police officers may disseminate information related to specific investigations to individuals in community without recording and retaining individual personal information through a number of methods that do not infringe upon individual human rights and fundamental freedoms, including community meetings.
RECOMMENDATION No. 3
That Article 4(a)(iii) be deleted from the Policy.
4. Issuance of Community/Officer Contact Receipts
As long as any form of carding will continue, ensuring effective monitoring of police practices and public accountability require the issuance of Community/Officer Contact Receipts after each community contact.
Upon the recommendation of the Streetchecks Sub-Committee, the Board directed the Chief to provide a receipt after each community contact. The Law Union is unaware of any Board direction to the Chief to abandon this practice.
This practice of providing mutual documentation of community contacts should be continued and codified in the proposed Community Contact Policy.
RECOMMENDATION No. 4:
That paragraph 5(f) be added to the Community Contacts Policy stating:
f. An officer who engages in a community contact will issue a receipt to the individual which includes:
i) the officer’s name, badge number and division;
ii) the location, date and time of the contact;
iii) the reason for the contact; and
iv) a copy of any Community Safety Note generated by the Contact.
5. Informing community members of their rights
Paragraph 5(c) provides that the Chief shall establish procedures to ensure that:
(c) Community members know as much as possible in the circumstances about their right to leave and the reason for the Contact
This provision requires further clarity and specificity to ensure that persons approached are aware of their rights as guaranteed by the Charter of Rights, and of the consequences of agreeing to answer an officer’s questions or not. It should also require affirmation of informed and voluntary consent.
The police are the representatives of the state in the community. Persons approached will continue to include many who are young, racialized and marginalized. The power imbalance between a mature, uniformed and armed officers and such persons is enormous. The policy must recognize this power imbalance and aim to mitigate it in circumstances where the subjects of the Contacts are not legitimately suspected of actual wrongdoing.
RECOMMENDATION No. 5:
That Article 5(c) be reworded to state:
Community members know as much as possible in the circumstances about their right to leave and the reason for the Contact, including by requiring that service members advise every subject of a Contact: (a) that they have the right to refuse to answer questions; (b) that they are free to leave the Contact at any time; and (c) that any personal information that they provide to the service member could be retained in a police intelligence database; and by requiring the service member to ensure the subject’s informed and voluntary consent before proceeding with the Contact.
6. Data retention
The Chair’s April 16, 2014 report to the Board recommends, at item no. 6, that the Chief of Police report within three months on
“the disposition of contact information gathered prior to July 1, 2013 through the former Form 208, otherwise known as ‘Contact Cards,’ that served no public safety purpose as defined in the policy and the procedures.”
Further, the proposed Community Contacts Policy, at article 8(g), states that personal information collected in carding interactions (in Form 208s, Community Safety Notes, etc.) that does not conform to the new policy and procedures (hereinafter “non-conforming legacy data”) should be destroyed.
In order to ensure full compliance with this directive, it is necessary for the Chief to also:
(a) disclose particulars about the manner in which such data was collected and stored, and whether any of the data was ever made accessible to any external entity (such as the RCMP, CBSA or foreign law enforcement agencies);
(b) present a plan for destroying any such data that has been shared with any other Canadian or foreign entity;
(c) establish a procedure for advising every individual whose “non-conforming legacy data” has been shared with any external entity of the particulars of what information has been disclosed about them and to whom.
RECOMMENDATION No. 6
a. That the Board adopt recommendation no. 6 with the following modification:
The Board request the Chief of Police to provide a report within three (3) months on the disposition of contact information gathered prior to July 1, 2013 through the former Form 208, otherwise known as “Contact Cards,” that served no public safety purpose as defined in the policy and the procedures; to include details about whether any of the information was provided to any external entity, and if so to whom, under what circumstances, and whether any of those entities shared the information with any other entity, as part of the report, and also report on the development of a retention and destruction protocol consistent with the policy;
b. That the Board confirm that it will publicly disclose the report referred to in recommendation no. 6 of its report.
c. That the retention and destruction protocol referred to in Article 8(g) include a protocol to promptly:
(i) notify personally any individual about whom Form 208 or other Contact data that does not conform to the new policy and procedures (“non-conforming legacy data”) has been disclosed, including notification of what data was shared and with whom; and
(ii) take the necessary steps to compel and verify the destruction by any other record holders of non-conforming legacy data.
7. Third-party monitoring and reporting
Given the history of the practice of carding, there is a need for third-party monitoring of the implementation of the policy by the Ontario Human Rights Commission. This should be done in a transparent and accountable manner, which would include reporting to the Board and to the public.
RECOMMENDATION No. 7
a. That the Toronto Police Services Board request the Ontario Human Rights Commission to monitor the Toronto Police Service’s compliance with the Community Contacts Policy for a period of no less than ten (10) years to ensure compliance with the provisions of Ontario’s Human Rights Code; and
b. That any incidents of non-compliance with Community Contacts Policy be included in the Chief’s reports to the Board under article 19 of the policy.
8. Community-driven process
Communities want to be safe. Members of the public want an appropriate police presence in their communities to protect their safety. However, carding has not been the answer to ensuring public safety. Rather, it appears to have caused a great deal of harm to many of the individuals that were carded and to communities as a whole. In many ways, carding has been the antitheses of good community-based policing. There are other better and legal ways to engage in community policing. It is necessary to rethink how the police engage with the diverse communities of Toronto. However, those communities must have a focal role in developing better community policing practices. This is essential if the trust and confidence of the members of these communities is to be restored and if public safety is to be protected.
RECOMMENDATION No. 8
That the diverse communities of Toronto be invited to have a central role in the development of the practices to be developed by the Chief pursuant to the Community Contacts Policy, as well as to participate in developing a broader framework for community-based policing.