Community Members Discuss Their Rights Regarding Police Carding

By Neil Armstrong
Pride Contributing Writer

BRAMPTON, Ontario – An Ontario politician who has experienced carding or arbitrary street checks by the police wants it eliminated and recently held a town hall meeting in Peel Region to discuss the practice with constituents.

Jagmeet Singh, Member of Provincial Parliament (MPP) for Bramalea-Gore-Malton said the negative consequences of carding are felt and experienced by many in the community, including himself.

The discussion entitled “Carding and the Community,” was organized so that community members could know their rights related to the arbitrary street checks.

Held at the Terry Miller Recreation Centre in Brampton, Ontario, on March 29, participants were invited to share their experiences and join Singh in a discussion “about how we can move away from these discriminatory practices.”

The panelists included: Anthony Morgan, policy lawyer at the African Canadian Legal Clinic (ACLC); Roger Love, lawyer at the Human Rights Legal Support Centre; Knia Singh, president of the Osgoode Society Against Institutional Injustice; Nicole Bonnie, senior service manager of community engagement and partnerships at Peel Children’s Aid; and San Grewal, urban affairs reporter at the Toronto Star.

Love said the problem with carding is that it is confusing and exists within a gray area.

He said there are rights enshrined under the Canadian Charter of Rights and Freedoms, if detained, but carding exists outside of a legal framework.

Love said the collection of data has real effects on lives and could affect someone seeking to apply for a job at the Pearson International Airport.

He shared five options that individuals have when confronted with carding.

They can apply to the Human Rights Tribunal of Ontario within a year to demonstrate that race was a factor in their encounter with the police, or they could make a complaint to the Office of the Independent Police Review Director (OIPRD), which receives, manages and oversees all complaints about police in Ontario.

They could also approach the Ontario Human Rights Commission (OHRC) that has special powers to conduct an inquiry into issues that affect a person’s human rights.

The fourth option is to take the matter straight to the police themselves and file a Freedom of Information (FOI) request, or to do the fifth, which is to file a Charter application.

Bonnie said there are levels of marginality and vulnerability that the youth in Peel have as they navigate the criminal justice system.

She said there are multidimensional issues like race, class and gender and the intersection of social determinants that are at play.

The Peel Children’s Aid manager said these are young people who do not have much access and who are vulnerable and on the margins.

Bonnie said usually there is a whole array of social issues happening at the same time in their lives.

“Racialized black young women have horrific traumatizing experience with police, especially through sexism,” said Bonnie, noting the multiple intersecting types of marginality.

She noted that race and racism are key elements in all of this in terms of surveillance and that there is dichotomous hyper-visibility and hyper-invisibility happening at the same time.

Bonnie explained that hyper-invisibility happens in relation to policies, processes, procedures and money to fix issues in relation to the community at the table of decisionmakers.

“What we’re discussing is racism, we have to keep bringing it back to racism because what it’s become is racism cloaked in legalities. And, we’re having this debate over what’s right, what’s wrong, what do the regulations say but it’s very clear in our Charter of Rights you have four really important sections – 7, 8, 9 and 10,” said Singh.

Section seven deals with one’s liberty, eight deals with unreasonable search and seizure, nine deals with arbitrary detention, and ten deals with an individual’s legal rights.

“What we’re discussing falls firmly in 9 because this is arbitrary detention. We want to call it carding, we call it street checks, we call it anything but when it comes down to legalities this is arbitrary detention. What we have to remember is that anytime this takes place it’s not in a criminal context and this is why the Toronto Star did the work they’ve done, this is why ACLC and the Ontario Human Rights Commission do the work they do and this is why a citizen, like me, who’s become a law student, who’s become an advocate, does what I do.”

Singh said this is about dealing with issues where people are innocently walking down the street, driving a car, “they’re not suspicious, they’re not in a high crime area and they’re not around people that are criminals” but they get stopped because police see a black face and they think that maybe the person is under some charges, have a curfew, or the stop may result in an arrest.

The law student said this has been going on for centuries and is the residual effect of the Trans-Atlantic Slave Trade.

Emphasizing that he is talking about the systemic institution of policing in North America and the police culture, not individual police officers, Singh said this has allowed misbehaviours to take place.

“And what has happened is that they have used their badge, their authority and their gun to impose their will on people, whether it be for their own personal gain, whether it’s just because they have a racist attitude, and in very rare instances I would say maybe because they have a legitimate concern with safety in an area.”

He said if they have a legitimate concern with safety the racism will not be played out the way it does in the first two instances he described.

Singh said his first experience with carding was an experience with racism, which happened when he was 12 years old and in a Zellers store looking at model aeroplanes and model paints – these were things he loved.

He was exiting the store when a security officer blocked him and told him to “put that paint back.”

Puzzled, Singh asked him what was he talking about and the security officer said, “I saw you with the paint, put it back.”

“I didn’t take anything, you can search me,” Singh told him, noting that he was 12 and did not know his rights and felt offended but did not know what to do.

“He’s thinking this black kid stole something because that’s racial profiling. We’re talking about racial profiling – the profile of someone’s race, blacks, criminals right, that’s what goes through the minds of the institutions,” Singh said.

His second came when at the age of 16 he just got his license and was driving with his friends in his parents’ stationwagon.

Singh said he was naïve then but eventually recognized that the officer stopped them because they were black and he thought that they may have stolen a car.

“But my first significant experience actually happened here in Peel. It was in 1991, and me and a few people, we were going on a trip, so we were supposed to go to the airport. We had stopped in a parking lot, we had got some food and we were just talking in the parking lot. And, all of a sudden the cop’s car pulls up, what are you guys doing? And then just started questioning us and then searched the whole car. So you got four 17 year olds and one adult, because we were travelling with the adult, they searched our car for no reason.”

Singh said they did not know about section 8 of the Charter, which relates to their rights against unreasonable search and seizure.

“We didn’t know that we didn’t have to comply. We just accepted it as fact, it was normal to us.”

In his mid-20s, he started getting stopped frequently while driving but it started to get to a point where he started understanding that they were violating parts of his rights.

In December 2012, Singh made his FOI application and received all his cards in March 2013.

He had been stopped over 30 times and has 11 official cards and it was only during one of those carding experiences that he actually knew that he was being carded.

“Three of my cards say ‘not police friendly’; two of them say ‘born in Jamaica’; one of them said ‘immigration warrant’; not to mention the other descriptors. I have my height… ranging from 5ft 9inches, 150 pounds all the way up to 8ft tall 141 pounds. These are official documents that the police are saying we need to keep this in our data indefinitely,” said Singh who was born here.

Singh said the story broke when his friend, Chris Williams, was stopped on his birthday by a police officer that blocked him into a parking lot and told him that his sticker was expired.

Williams requested his card and got one sheet back but prompted Singh to do his to see what the police had on him because he was in the music business and also involved in black activism.

Singh got back 57 pages of information; much of it related to carding, and when the story broke in the Toronto Star, he drew the analogy to the passbook system in South Africa.

He said some people thought he was being too extreme but he disagreed noting that, “In the GTA if you’re black, papers please – that’s what they used to say under apartheid, where’s your papers and we all have to show papers to be legit and not to be harassed. And it is not only while driving, it’s while walking, it’s while standing; it’s all of these circumstances.”

The story broke when he was a first year law student at Osgoode Hall Law School and there were law students around him who said they never knew that such a thing happened in Canada.

He was surprised by their response because to him that was his lived reality regularly.

The students formed the Osgoode Society Against Institutional Injustice to draw attention to these issues.

One aspect of Singh’s advocacy was to seize the opportunity that community members had to make deputations to the Police Services Board.

He would always register his name as a civilian to do a deputation and also the Osgoode organization so that he could speak about the impact of carding on him and the youth in the community and also the legal issues surrounding it.

“What we have to understand is the policy and regulations we’re discussing now, they didn’t exist because our Charter already protected us. There were already Supreme Court decisions that protected us but the Police Services Board was forced to write a policy to guide their officers on their limits. So, recently, we keep framing this as a carding regulation but what’s really happening is the police were given regulations on how to conduct themselves when dealing with individuals.”

The law student said it is not a regulation for carding but instead is a regulation that governs how the police interact with civilians.

“These regulations are fairly good. There’s problems yes but the draft regulations that we were given were horrific. They had endless loopholes, they were vague, they didn’t speak to anything, there was hardly any accountability and the community together pushed and pushed. These regulations are good because of two reasons: one, I always remember we’re protected by the Charter and we’re protected by case law but two, there’s a lot caveats in here that when the police have an exemption they have to articulate that exemption. They can’t just opt out because they feel unsafe or opt out because they feel that it will compromise safety. When they opt out of anything in these regulations they have to write it down and they have to submit it to their chief.”

Singh said what is going to be effective as a community is to hold every police board and every police chief to these regulations and if this is done there will be a safer environment.

He reminded those gathered at the town hall meeting that in a majority of circumstances they do not have to say anything at all to the police, which is protected under Section 7 of the Charter.

“The one thing where your information is required by law is under the Highway Traffic Act when you’re stopped while driving. The driver is mandated to produce license, insurance and registration. You can hand those things over without even saying a word. That’s your choice, but you’re mandated to provide those three things for safety reasons. Officers can stop your car to check vehicle safety and sobriety,” said Singh.

He said the only line of defense that African Canadians  have against racism and discrimination is teaching the people subject to this practice their rights and how to assert them.

“The first thing is, you be polite always, you’re always polite, you don’t show any attitude. Second, you can choose to remain silent however long you want.”

Another key thing is detention; Singh said this becomes a problem if someone is stopped arbitrarily (Section 9 of the Charter), an individual has a right to a lawyer, to be informed why the stop was made, the individual does not have to say anything and should not be searched.

Morgan outlined the ACLC’s response to the province’s recently announced regulation regarding carding, which was written in a press release, and encouraged those present to read Pride News Magazine online for the details.

Grewal gave a synopsis of the Toronto Star’s approach to reporting on racial profiling and carding within the Toronto Police Service and how its investigative reporting mapped findings to demographics within the Greater Toronto Area.