The following statement, issued by the African Canadian Legal Clinic, is the organisation’s response to the Ontario government’s recently announced “carding/street checks” regulations.
On Tuesday, March 22, 2016, the Ontario government released its final Regulation on street-checks/carding.
The African Canadian Legal Clinic is deeply concerned that this Regulation fails to fully, and finally, provide adequate protection for the fundamental rights and freedoms of African Canadians, as they do not prohibit anti-Black racism and racial profiling in the collection of individuals’ identifying information.
While the Regulation is a welcome and important step in the direction towards increasing accountability for the prevention of anti-Black racism in policing, the Regulation has serious shortcomings that markedly impede progress towards fair and equitable policing in Ontario.
Among the most glaring limitations in the Regulation’s ability to protect African Canadians rights under the Canadian Charter of Rights and Freedoms and Ontario’s Human Rights Code are the following issues:
- Carding Permitted During Investigations: The Regulation does not apply in far too many circumstances in which racial profiling and anti-Black racist policing rampantly occur, namely, during police investigations. In particular, the Regulation “does not apply with respect to an attempted collection made by a police officer for the purpose of investigating an offence the officer reasonably suspects has been or will be committed.”
- Regulation Permits Sharing of Other Individuals’ Information Without their Knowledge or Consent: The Regulation does not apply when officers seek to collect identifying information from an individual about another individual other than themself.
- Use of Vague Suspect Descriptions Permitted: The Regulation continues to allow street checks to occur even when officers only have a vague description of an individual. For instance, the Regulation permits the collection of identifying information with broad descriptions such as, “Black male with a baseball cap.”
- Weak Rights Notification: The Regulation does not require officers to tell individuals from the very start of the interaction of either the reason for the interaction, or that they are not required to provide their identifying information. Officers are also not required to inform individuals that they have the right to walk away in circumstances when they do in fact have that right. There is also no standardized language required for the rights notification provisions to ensure that there is consistency and clarity in its delivery.
- Receipts Without Reasons: Officers are not required to indicate the reason(s) for stopping and collecting the data of individuals on the receipt they must provide to them when they collect their identifying information. The receipts also do not include contact information for the Human Rights Tribunal of Ontario or the Human Rights Legal Support Centre.
- Children and Youth Documented without Parental Consent: The Regulation does not require children and youth under 18 to be informed that they can call their parent or guardian before surrendering any identifying information to police.
- Indefinite Data Retention: The Regulation makes it possible that all previous and future identifying information collected by police be stored and accessed in police databases forever.
- No Standardization of Data Collection: The Regulation does not require clear standardization for the collection of data to ensure comparability and accountability across jurisdictions.
- Regulation Permits Carding Performance Targets for Police Divisions and Units: The Regulation allows special police units, such as the Toronto Anti-Violence Intervention Strategy, to have their performance rewarded on the basis of the number of successful and attempted carding interactions.
- Absence of Training on Anti-Black Racism and Racial Profiling: There is no requirement that officers be trained on how to detect and avoid engaging in anti-Black racism and/or racial profiling when attempting to collect individuals’ identifying information.
“A careful reading of the Regulation reveals that it offers some notably progressive and hard-fought rights protections, but ultimately amounts to a band aid rather than an outright banning of carding in Ontario” said Anthony Morgan, a lawyer at the African Canadian Legal Clinic.
“While the Regulation offers important new mechanisms for holding police accountable when they seek to collect individuals’ information, it falls short of prohibiting and preventing antiBlack racism and/or racial profiling that African Canadians have chronically experienced in the collection of their identifying information.”
In the coming weeks, the African Canadian Legal Clinic will be reaching out to other African Canadian-serving organizations, institutions and leaders for the purpose of hosting a public education forum on the new Regulation.