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. […]
Recommendation 1
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.
Recommendation 2
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.
To endorse this call, email your 1) name/organization; 2) email address to: law.union.of.ontario@gmail.com
Endorsed by:
Africans in Partnership Against AIDS
Canadian HIV/AIDS Legal Network
Criminal Lawyers Association
Defence for Children International
Department of Criminal Justice and Criminology, Ryerson University
Frontline Partners with Youth Network
HIV & AIDS Legal Clinic Ontario (HALCO)
PASAN
Toronto Police Accountability Coalition
Justice for Children and Youth
Parkdale Activity Recreation Centre
Mothers Offering Mutual Support
Advocacy Centre for Tenants Ontario
The Canadian Harm Reduction Network
Karen Schucher
Sharon Crowe
Vincent L. Nesparoli
Carol Popovic
Linda Newton
Satomi Aki
Jackie Esmonde
Steven Sagle
James Roundell
Tanya Thompson
Catherine Shortt
Giselle Dias
In the aftermath of an Ontario court striking down another “mandatory minimum sentence” last week, Ontario lawyers and legal rights advocates are urging Ontario’s Attorney General, Hon. John Gerretsen, to take steps to mitigate the impact of the federal government’s new crime legislation before it begins coming into force on August 9, 2012. The Law Union of Ontario has written to Attorney General Gerretsen asking for the Minister to comply with the spirit of two Ontario court rulings by resisting the measures implemented under Bill C-10, the “Omnibus Crime Bill”, through provincial policies. The letter calls on the Attorney General to:
Instruct Crown prosecutors to give serious consideration to consenting to probation in place of jail sentences;
Encourage Crowns to pursue other reasonable offences that preserve judicial discretion in sentencing instead of those carrying mandatory minimums;
Direct Crowns to seek non-custodial sentences for non-violent offences and for offenders who do not pose any public safety risk; and,
Promote greater reliance on mental health and addiction diversion strategies, similar to measures expected in Quebec that promote treatment over imprisonment.
For youth in the system, the Attorney General should:
Direct that a young person’s name only be made public in exceptional circumstances;
Relieve prosecutors of the obligation to demand an adult sentence for someone under 16;
Ensure that all players in the youth justice system receive proper training on the new provisions and objectives of the Youth Criminal Justice Act; and,
Ensure that alternative measures/diversion provisions are available for populations that face special challenges.
The Ministry of Community Safety and Correctional Services has estimated that the Omnibus Crime Bill will cost Ontario more than $1 billion in infrastructure-related costs alone, and more than $50 million annually in additional operating expenses for new jails and correctional institutions. This is an enormous cost for policies that increase repression a do nothing for public safety and increase the risk of re-offending.
The enclosed letter was sent to Premier Jean Charest and several government ministers on May 30, 2012
May 30, 2012
The Honourable Jean CharestPremier
Government of Québec
Édifice Honoré-Mercier
835, boul. René-Lévesque Est, 3e étage
Québec (Quebec) GIA 1B4
Dear Premier Charest,
The Law Union of Ontario expresses solidarity with the students in Québec who continue to protest the tuition increase and more broadly, the austerity measures that are being effected throughout Canada.
The student demonstrations in Québec have sparked widespread discussion on the accessibility of education. The tuition increase proposed by the Charest government comes from the view that the current method of funding post secondary education is fiscally unsustainable and that individual students should bear the burden of their education. This view heavily deviates from the goal of democratizing post secondary education identified by he Parent Commission and results in a number of unwanted repercussions, including the
exclusion of equity groups that cannot afford a post-secondary degree. The red squares that many of us wear in solidarity of the student movement signify the impact that the proposed increase will have on student debt; it will leave students “carrément dans le rouge” (squarely n the red) and will trap students in years of debt.
Further, we recognize that the demonstrations are part of the greater struggle opposing neoliberal austerity measures that are being proposed and implemented by various Canadian governments. The tuition increases, bursary cuts, and additional efforts to encourage
donations from individuals and businesses are all part of the neo-liberal discourse of privatization. The Charest government’s proposals are indeed consonant with the way neoliberalism operates—the use of state power to create an increasingly laissez faire environment while making efforts to decrease public expenditures. We see the hikes as an attack on some of the most vulnerable members of society and find parallels in our commitment to oppose inequality that is fueled by government and corporate actors. By fiercely advocating against neo-liberal austerity measures, the students in Québec set an example for the rest of us to follow; they remind us that there is an alternative to passive acceptance of the status quo by taking deliberate steps to build a better, more equitable future.
We urgently appeal to the Charest government to repeal Bill 78: An Act to enable students to receive instruction from the postsecondary institutions they attend for the severe ramifications it poses to Charter rights. Specifically, Bill 78’s provisions, which require
protestors to give at least eight hours notice to the police force of the time, duration, and itineraries of lawful assemblies involving 50 people or more, and the various penal sanctions for failing to adhere to this protocol, will have a chilling effect on the section 2(c) right to
peaceful assembly guaranteed in the Charter of Rights and Freedoms. The banal naming of the legislation is nothing more than a mask for the further criminalization of dissent. Further, we ask the Charest government to resume negotiations with students in good faith, and call
for a moratorium on rising tuition fees. We condemn the police brutality, the arrests of
peaceful protestors, and the intensification of policing activity surrounding the ongoing
strike. Lastly, we protest the municipality of Montréal’s attempt at hindering protestors by
adopting the anti-mask bylaw.
Nous sommes solidaires avec les étudiants. Nous sommes ensemble.
-The Law Union of Ontario
cc Madame Michelle Courchesne, ministre de l’Éducation, du Loisir et du Sport
Fédération étudiante collégiale du Québec
Fédération étudiante universitaire du Québec
Coalition large de l’Association pour une solidarité syndicale étudiante