Law Times

Page 12 May 26, 2014 • Law TiMes www.lawtimesnews.com Lawyer reserving judgment on new carding policy BY michael mcKiernan For Law Times nly time will tell whether a new card- ing policy for Toronto police can eliminate racial profiling concerns about the practice, according to a Toronto criminal lawyer. In April, the Toronto Police Services Board established its first guidelines for police interactions with the public that tightened up the rules on when officers can stop and document individuals on the street. e action followed a long-running Toronto Star in- vestigation that found black and brown-skinned males were dis- proportionately represented in a police database. In coming up with the new policy, police sought the help of former Criminal Lawyers' Asso- ciation president Frank Addario, a fact Maureen Salama says is a sign the board has taken commu- nity concerns seriously. However, Salama, a criminal lawyer with Toronto law firm Brauti orning Zibarras LLP, says she'll reserve judgment until at least October when the board comes back with its first report on progress with the new policy. "eoretically, the changes are a step in the right di- rection," says Salama. "ey have tried to prevent the abuse of the policy, but there is wiggle room in the way it's draed. Privacy and Charter rights are definitely still in play, but I'm ob- viously happy to hear that they're trying to determine how efficient and helpful this process actually is and I'm hopeful they can find a way to address the problems asso- ciated with carding." Barbara Hall, the chief com- missioner at the Ontario Human Rights Commission, agrees the new policy is a good first step. "is is a very good policy, and we think it has done what the board wanted to do, which was to push the reset the button," she says. "But at the end of the day, it's a policy and how it's implemented will be key. So in a sense, the work is just beginning. We will be happy to continue to work with both the board and police in implementing and monitoring the policy as well as with affected communities." Toronto police can now stop and document individuals only where there's a "valid public safety purpose" for the contact. e policy bars officers from consid- ering race or skin colour when deciding when to stop someone unless they're searching for a spe- cific suspect, victim or witness. e policy explicitly identifies meeting quotas or performance targets and raising awareness of police presence as invalid justi- fications for carding. It also asks officers to ensure members of the public are aware of the voluntari- ness of any contact and their right to leave at any time "as much as possible in the circumstances." e definition of a valid pub- lic safety purpose was a sticking point for carding critics, particu- larly aer a dra version included a clause that would allow stops for "collecting intelligence relating di- rectly to an identifiable, systemic criminal problem." Aer a marathon session on April 24, the board agreed to drop the clause following deputations from a number of groups, includ- ing the Ontario Human Rights Commission. Hall says in high- crime areas, it would have under- mined the whole policy by giving officers almost free rein to card whoever they want. "Officers' discretion seemed very broad but now it is narrowed significantly. Having clear and lawful criteria for the exercise of officers' discretion will go a long way towards eliminating racial profiling," she says. e final policy defines the fol- lowing public safety purposes that will justify a stop: • Investigating a specific offence or a series of offences. • Preventing a specific offence. • Ensuring the community member who's the subject of the contact isn't at risk. Police can add only stops car- ried out according to the policy to the investigative database that records personal information about subjects. However, police will create a separate anonymized database of all stops as part of the policy to track compliance with statistics reported to the board three times a year. Salama says the term "series of offences" could give officers some of the leeway they lost with the removal of the "systemic criminal problem" clause. She would also like to see a stronger duty on police to notify subjects that their interac- tions with them are voluntary. "e average citizen doesn't really know a lot about their rights," she says. "It's natural to feel that if a police officer is ask- ing you question, you should provide answers. I don't think a lot of people would sit there and provide information willingly if they knew they didn't have to." Hall says she's particularly hap- py with the level of data collection promised by the policy. "at is very important, in terms of determining what actu- ally happens and finding out, from a racial profiling perspective, who is being stopped and how effective the new policy is being," she says. Police board chairman Alok Mukherjee says he hopes the pol- icy can finally make an impact on the long-standing problem. "People have been paying at- tention to this issue since the late 1990s. e response then from the police was to deny that po- lice engaged in any discrimina- tory practice. In 2004, the posi- tion changed and I, as the new chair, and our new Chief [Bill] Blair, acknowledged there could be a problem," he says. Mukherjee says he moved to hire Addario last year aer a Star investigation showed the num- ber of people carded each year had doubled in just over a decade to about 400,000 per year from 200,000. "at was a devastating anal- ysis. My reaction was that this was totally unacceptable and we obviously need to make a bigger effort. e board is very com- mitted and quite excited about taking this strong proactive ap- proach to an old and widespread problem." LT FOCUS Now there is a quick, reliable way to get insightful coverage of important topics in sentencing law. Written by a criminal lawyer, Lalande on Sentencing Newsletter is designed to give criminal lawyers fast access to the relevant topics and latest developments in sentencing law. Every issue of this biweekly newsletter features an introduction to a key sentencing issue or topic, legislative references and summaries of recent and noteworthy cases – followed by commentary and analyses. PROVIDED IN TWO FORMATS FOR YOUR CONVENIENCE Your subscription to•Lalande on Sentencing Newsletter includes a print version – and a PDF version that can be emailed to you upon request. As an added bonus for WestlawNext® Canada subscribers, the PDF version includes links to the full text of the cases referenced within the newsletter. • To view or download a complimentary issue online, visit the Carswell Criminal Law Practice Community Page at www.carswell.com/subject/criminal. NEW PUBLICATION LALANDE ON SENTENCING NEWSLETTER JULIEN LALANDE AVAILABLE RISK-FREE FOR 30 DAYS Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 GET TOPICAL AND INSIGHTFUL COVERAGE OF CURRENT ISSUES IN THE LAW OF SENTENCING ORDER # A20214-13-65203 $135 Annual subscription newsletter – print + email PDF 24 issues included in the annual subscription November 2013 978-0-7798-6063-0 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. O It's natural to feel that if a police officer is asking you questions, you should provide answers. I don't think a lot of people would sit there and provide information willingly if they knew they didn't have to.

• Cover