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Why Has It Taken Authorities This Long To Recognise That ‘Carding’ Is Wrong?

 

By Justice Vibert Lampkin
PRIDE Guest Columnist

 

The issue of ‘Carding’ by the police has been in the news for years.

The police in Toronto had – or still has – the practice of stopping pedestrians and asking them for information about themselves. The persons so stopped were overwhelmingly young Black males. I have always held that the practice was illegal and indeed unconstitutional.

Two weeks ago, a high profile committee, comprising inter alia, Honourable R. Roy McMurtry, former Chief Justice of Ontario, former Attorney General of Ontario, former Solicitor General of Ontario, (who appointed me to the Bench) met with Mayor John Tory, urging him to put an end to the practice.

On Sunday, June 7, Mr. John Tory, for whom I voted as Mayor, recanted. He now says that carding must be stopped. Quite frankly I am surprised that it took them so long to call for the abolition of this practice.

On November 17, 1982, seven weeks to the day after I was sworn in as a judge on September 29, 1982, and seven months to the day after the Constitution of Canada was signed on April 17, 1982 by Her Majesty Queen Elizabeth 11 and Prime Minister Pierre Trudeau, I delivered judgment in the case of R. v. Tyrell, [1982] O.J. No. 1059. It is probably my first reported judgment.

The facts were that on September 30, 1982, some twenty-five to thirty police officers conducted a ‘raid’ on premises in Toronto, in an area known as ‘The Jungle’ for the purpose of arresting certain parties on outstanding charges.

Before the raid, discussions were held at the police station, during which the name of the accused had been mentioned, but he was not wanted on any outstanding charges, nor was there any warrant to search his premises.

The police arrived at the targeted premises about 4:10 p.m. On a search of the premises, one officer found seven dime sized packages of marijuana and a number of males were apprehended.

About 4:28 p.m. two officers observed a male walking on the opposite side of the street, with a little girl going in the opposite direction.  According to one officer, the male was about 50 to 60 feet away when he first observed the male.  According to the other officer, the male was about one hundred and fifty feet away.

The officers crossed the street and approached the male, and then recognised the accused.  He was taking his six-year old daughter home from the school she attended in the area of the targeted premises. She lived with her mother who lived a quarter mile from the school. He had to pass the targeted premises to get from the school to her home.

The police said that as they approached him, he appeared to put something in his shirt pocket, although they had seen nothing in his hand.

When the police spoke to him, he appeared to be nervous and hesitant to answer questions. In the opinion of one officer, the accused was not gainfully employed, and was a person who was likely to be involved with drugs.

Because of these circumstances, and the fact that the name of the accused had been mentioned prior to the raid, the police searched him and found two dime sized packets of marijuana.

They searched the accused’s car with negative results. He was arrested for possession of marijuana, an illegal drug.

On the evidence before me, I found that the search was unreasonable for the following reasons:

1) The police had no outstanding warrants for the accused and there were no outstanding charges against him.

2) Merely because the accused is known to the police, does not give them sufficient cause to stop and search him.

3) The fact that the accused happened to be on the road, opposite to a building where a drug raid is being carried out, walking his daughter home from school, cannot clothe the police with authority to stop and search him, when they have no knowledge that he had come from the building, and was some distance – between fifty and one hundred and fifty feet – from the building when first seen.

4) The putting of his hand in his pocket while walking along the road, away from the police, and with no attempt to evade or escape from them is such an ordinary everyday action, that by itself ought not to arouse suspicion.

5)  While it might be prudent and polite for a pedestrian to answer questions of the police, the police have no general right to question and arrest a pedestrian without warrant, in circumstances which do not trigger the application of Section 450 (1) of the Criminal Code.

6) Although the Narcotic Control Act authorises a peace officer to search without warrant, anyone found in a place other than a dwelling house, if he reasonably believes that there is a narcotic in such place, there must be territorial limits to the meaning of the word “place” and in my judgment, those limits do not extend to the opposite side of a public street, on which the subject building stands and some fifty to one hundred and fifty feet away from it.

When York University conferred upon me the degree of Doctor of Laws, honoris causa, in June 2009, which some of you attended, in his Citation to confer the degree, Dr. Patrick Monahan, Dean of Osgoode Law School of York University, referred to that judgment out of the nearly 300 reported judgments of mine, to reflect my judicial philosophy.

He referred to the fact, that it was one of the first cases, under Section 8 of the Charter, and there was very little guidance from the higher courts. Inter alia, he quoted the following passage from the judgment:

The Court has a duty and a responsibility not only to acquit the innocent, but also to protect society itself, by ensuring that detection of crime, and the prosecution of criminals are done in a manner and in accordance with rules which society authorized, either by statute or as recognised by the courts.

The courts must uphold those values which society holds most dearly.  One such value is the right to move about the public streets without let or hindrance.  Whenever there is a blatant disregard of those values, such as would shock the community, the Court has the duty to exclude the evidence if, having regard to all the circumstances, its admission would bring the administration into disrepute.”

So, I ask, why has it taken this long for the authorities to recognise that the practice of ‘carding’, which is the successor to what the police did in the Tyrell case, is wrong?

 

The Honourable Justice Vibert Lampkin is a retired Ontario Judge.

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