Law Times

Law Times • sepTember 10, 2018 Page 11 www.lawtimesnews.com Carding leads to mistrust Regulations can't prevent police racial profiling BY MEAGAN GILLMORE For Law Times L awyers continue to raise concerns that street checks by police disproportion- ately impact people from racialized communities, a few months before the scheduled completion of a report about provincial regulations on police checks. These regulations un- der Ontario's Police Services Act came into force in January 2017. Court of Appeal Justice Michael H. Tulloch was appointed to con- duct an independent review of the regulations. His report, along with recommendations to the government, is due in January, a website devoted to the review says. The regulations describe how an officer can collect identify- ing information about a person or ask for such information. The regulations say a police officer can only ask for this information if the officer is inquiring into possible or already-committed offences, inquiring into suspi- cious activities to detect of- fences or gathering information for intelligence purposes. This practice — commonly known as "street checks" or "carding" — has been widely criticized by those who say police are more likely to ask for the identity of people from racialized or other marginalized communities. Carding can be "an excuse for laziness," says Osborne Barn- well, a Toronto lawyer, who has clients who have been stopped repeatedly by police even though they have done nothing wrong. "I think what [police] need to do is build better community relationships so when a crime is committed witnesses will come forward freely," says Barnwell. Those relationships are espe- cially important with commu- nities where police often suspect crime, he says. Barnwell says he's never been carded himself, but as a Black man, he understands the com- munity's concerns. He says it would be naive to say police should never stop anyone to ask for information, but that they need to suspect that an actual crime is occurring to do so. "In our democratic system, in terms of the enforcement of our criminal laws, it has always been the case there has to be a grounds on which a police offi- cer can stop somebody," he says. "And that should continue to be the basic rule." Jack Braithwaite, a labour and employment lawyer with Weaver Simmons LLP in Sud- bury, says carding should be completely eliminated. "I'm of the view that there is no place for carding or street checks," he says. "I think it's in- evitable that there's going to be some profiling going on." Braithwaite, who is a member of the Canadian Association of Black Lawyers, says carding can make people feel embarrassed and increase feelings of mistrust they may have with police of- ficers. When people are being carded, Braithwaite says, they feel "they have to be submissive, and if they're not submissive, it's a strike against them. It isn't a balance of power. Even if they feel that it was unjust, that they shouldn't have been stopped, they really have no recourse. They can't prove anything." The regulations say that a po- lice officer cannot ask someone for identifying information in an arbitrary way or solely be- cause they are from a racialized community. They also say that police officers must tell some- one that they are not obligated to give their identifying informa- tion and why they are asking for this information, unless doing so would put someone's safety at risk, compromise an investi- gation or reveal confidential or legally protected information. "There is a widely held belief among many members of racial- ized communities that when a police officer asks for their identification they're required to supply it to them," says Leonar- do Russomanno, a criminal de- fence lawyer with Russomanno Criminal Law in Ottawa. This leads to "mistrust when you have an entire community that is disproportionately sub- jected to police attention. It has a ripple effect on the entire com- munity," he says. Police officers are also re- quired, under the regulations, to maintain records about street checks, including documenting the reasons for the stops. They are required to offer individu- als the chance to have a record of this interaction. "I hope that by regulating po- lice checks we can ensure that these stops and these checks don't disproportionately impact mem- bers of racialized communities," says Wade Poziomka, a partner with Ross & McBride LLP in Hamilton, Ont., who practises human rights law. "The police certainly have to have the abil- ity to do their job. But they can FOCUS Osborne Barnwell says police officers need to build better relationships with the com- munity to encourage people with informa- tion about crimes to come forward. See More, page 12 The regulation creates an exemption that is very, very wide. 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