Ontario’s New Carding Policy: What the New Rules Mean for You

Written on Behalf of Affleck & Barrison LLP

After significant public outcry, Ontario has banned the practice of carding, also known as “street checks”. As of January 1, 2017, police in Ontario must follow new rules about when and how they can ask people to identify themselves, in certain circumstances.

New Rules for Identification

A new regulation prohibits police officers from collecting identifying information “arbitrarily” (i.e- based on a person’s race or a person’s presence in a high crime neighbourhood or area, among other factors).

The Minister of Community Safety and Correctional Services has stated that the regulation was drafted following consultations with the public on how to improve confidence and trust in the police:

These new rules protect the rights of people who are not under investigation while also laying the foundation for more positive, trusting and respectful relationships between police and the public

When Do the New Rules Apply?

The new rules will apply if an officer asks you to identify yourself while the officer is:

  • Investigating suspicious activities
  • Gathering intelligence
  • Looking into general criminal activity in a community.

This will not apply if the officer is:

  • Talking to you during a traffic stop
  • Arresting or detaining you
  • Executing a warrant
  • Investigating a specific crime

What Does This Mean for People Who Are Stopped by Police?

Now, if an officer asks you for ID in a situation where the rules apply (see above), the officer must:

  • Have a reason for asking for your ID
  • The reason cannot be:
    1. Based on race
    2. Arbitrary (i.e- have no meaning)
    3. That you are in a high-crime area
    4. Because you walked away or refused to answer a question
  • Tell you why they want your identification
  • Tell you that you can refuse to provide your identification
  • Offer you a receipt (even if you refuse to share information)
  • The receipt must include:
    • The officer’s name
    • The officer’s badge number
    • Information about how to contact the Office of the Independent Police Review Director (OIPRD), which is responsible for handling complaints about the police in Ontario
    • Information on who to contact in order to access the personal information that the police has on file about you
  • Keep a detailed record of their interaction with you (even if you refuse to share information)

Exceptions to the Rule

There are some limited exceptions to the new rules. If following the rules negatively effects an investigation, threatens public safety, or forces officers to reveal confidential information, police officers may not have to:

  • Tell you why they are asking for your identification (i.e.- if the officer is speaking to you because they have received a tip from a confidential informant)
  • Tell you that you have a right to refuse to give you identification (i.e.- if the officer suspects that a passenger in your vehicle might be a victim of human trafficking)
  • Provide you with a receipt (i.e.- if the officer receives an urgent call requiring their attention and must quickly end their interaction with you).

In any such instance where the new rules are not followed, the officer must record their reasons for not following the rules.

We will continue to follow developments with the new rules and what they will mean in practice for those interacting with the police and will update our readers as necessary.

In the meantime, if you have questions about your rights, or interactions with the police, or if you have been arrested or charged with an offense, schedule a free consultation with one of our knowledgeable and experienced Oshawa lawyers. We have 24-hour phone service for your convenience. contact our office online or at 905-404-1947.

Ontario to Regulate Police Carding Practice

Written on Behalf of Affleck & Barrison LLP

Late last month, following significant public outcry over the controversial practice of carding, the Ontario Liberal government announced that it would be introducing new regulations banning the arbitrary and random stopping and questioning of citizens by the end of the fall. Opponents of the practice expressed concern that the tactic disproportionally targets ethnic minorities, particularly young black men. The campaign for change was launched by deputy leader of the provincial NDP, Jagmeet Singh, a lawyer representing the riding of Bramalea-Gore-Malton, who knows his rights and had himself been carded over 10 times by police.

According to Community Safety Minister Yasir Naqvi, the new regulations would establish clear and consistent rules to protect civil liberties during voluntary interactions between police and the public. Naqvi said police will no longer be able to stop people based on how they looked or in which neighbourhood they live. Exemptions would be made in the rules to cover routine traffic stops, situations where someone is being arrested or detained or where a police officer is working undercover. Ontario police would only be able to stop, question and document members of the public if they have a valid policing purpose, defined as “detecting or preventing illegal activities.” Police would have to inform an individual of the reason for the stop and that the individual has the right to walk away. The province is allowing 45 days for public consultation, which will then be reviewed and considered. The province will then amend the regulations and allow time for police boards to make the necessary changes to policy and procedures. Once passed, the regulations would ban random and arbitrary stops as of March 1, 2016. By July 2016, the regulations around voluntary interactions, such as the need to inform individuals that they can walk away, would come into effect.

Police forces across the province, have been resistant to the call for change thus far. In response to the province’s announcement of the new regulations, the police forces have stated that although they will abide the regulations once they are put into place, they are currently working to halt some aspects of the proposed restrictions, claiming that they will prevent officers from interacting with the public. Although police forces have claimed that carding is a useful practice that helps them fight crime, they have not been able to provide any meaningful statistics that show that carding is a valid use of resources that actually prevents crime.

To discuss your criminal charges with an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.


Carding, Street Checks and “Community Engagement”: Know Your Rights

Written on Behalf of Affleck & Barrison LLP

What is Carding?

Carding (sometimes referred to as street checks or “community engagement”) is a controversial police practice of stopping people, apparently at random, to ask a series of intrusive questions and collect information. Carding often begins when a police officer approaches someone in a public place – on the street, in a park, outside a convenience store – and strikes up a conversation, asking an individual or group what they are doing. The officer then asks for identification, without placing the individual(s) under arrest.

According to investigative reports conducted by the Toronto Star , people stopped for carding between 2008 and 2013 were more likely to be African-Canadian than white, and the vast majority of encounters did not involve an arrest or charges. Despite charges not being laid, details about each individual were recorded and entered into a massive database. The Star reporters found that Toronto police filled out at least 2.1 million contact cards involving 1.2 million people between 2008 and 2013.

In 2014, rules about carding were briefly amended to require police to inform people of their rights and issue a receipt to the individual which would include the officer’s name and badge number. However, these rules were never fully implemented. In April of 2015, a new policy was announced requiring police officers to tell people why they are being stopped if they ask, and inform them that they are free to walk away. Police would also be required to give citizens business cards instead of receipts.

Although the police have claimed that the practice is legal, the legality of the practice is still unclear. Earlier this week, departing Ontario ombudsman Andre Martin stated in a report, “Stopping citizens without an objective an reasonable basis for believing that they may be implicated in a recent or ongoing criminal offence, or where there are reasonable and probably grounds to arrest them, is unconstitutional – it’s a form of arbitrary detention contrary to section 9 of the Canadian Charter of Rights and Freedoms.” Those calling for an end to the practice see no distinction between carding and racial profiling.

Know Your Rights

Many people are not aware that Canadians are not required to carry identification except when driving. In addition, an individual has the right to walk away from the police if he or she is questioned and not offered a legitimate reason for the police interest. If an individual is being arrested, he or she also has the right to counsel. But many people who have been carded report being intimidated by the confrontation and feel pressured to speak to police.

Jurisdictions across Ontario have been considering whether to suspend the practice as they await provincial regulation. Hamilton and Peel Region announced this week that they would not be suspending carding. Meanwhile, Queen’s Park has been consulting with police, concerned community groups, civil libertarians, the Ontario Human Right Commission and the general public with the aim of introducing a reform of carding later this fall.

If you have any questions about carding or to find out more about your rights, contact an experienced criminal defence lawyer at Affleck & Barrison online or at 905-404-1947.