Justice Tulloch Recommends Police Abolish Random Carding

Written on Behalf of Affleck & Barrison LLP

A new report entitled “Report of the Independent Street Checks Review“, completed by Ontario Appeal Court Judge Michael Tulloch, calls for a complete ban on “carding” by police throughout Ontario.

The report, which was commissioned by the previous Liberal government, came about following consultations with more than 2,200 individuals including representatives from 34 Ontario police services. The report specifically advocates for the widespread ban on carding. Carding has been shown to disproportionately target individuals of colour, including black and indigenous people.

WHAT IS CARDING?

Carding can be described as a street check where police randomly stop an individual to ask for identifying information in an effort to keep it in a police database.

This practice is considered unacceptable as the police do not have the authority to randomly or arbitrarily stop individuals and ask them to produce ID.

The practice of carding began in Toronto in 1957 when street checks were aimed at obtaining information on persons of interest to help detectives. Toronto police were given “Suspect Cards” to document and forward information regarding persons of interest to detectives. By 2015, this practice was formally called “Community Engagements”, and involved random stops of citizens and the collection of personal information, including physical appearance, address, and contact information. As time passed, investigative street checks expanded and police were given more discretion to stop people, including those who were not acting suspiciously. These street checks became a measure of police officer performance and they were incentivized to meet required quotas, with the bar for suspicious behaviour becoming lower and lower, and eventually dropped entirely.

 ONTARIO REGULATION 58/16

In 2016, the Liberal government implemented Ontario Regulation 58/16 under Ontario’s Police Services Act , which became effective January 1, 2017, to regulate carding.

Regulation 58/16 was aimed at stopping arbitrary carding practices by police officers, especially those based on race, and to clarify the rules surrounding street checks. Race is prohibited as constituting any part of a police officer’s cause for trying to collect an individual’s identifying information.

According to the Regulation, police officers were to inform those individuals randomly stopped that their participation is voluntary. It was also specified that officers were required to provide a receipt of the interaction.

Regrettably, Regulation 58/16 has been described as confusing and convoluted and often results in police officers avoiding street checks entirely to avoid accusations of racism for misinterpreting the regulation.

According to Justice Tulloch:

The improper practice of random carding led to the Regulation. The Regulation led many police officers to not conduct any street checks, whether improper or not. The lack of any street checks at all might have encouraged some types of crime to increase. 

The Regulation as it is drafted is a confusing and somewhat convoluted document to read. It was perceived by most stakeholders through my consultations – police and community members alike – as being too complicated and hard to follow. They felt it was written for lawyers, not police officers or community members. They wanted it to be simplified. Even lawyers who I have consulted with agree.

CONCLUSIONS MADE BY TULLOCH’S REVIEW OF THE PRACTICE OF CARDING

Following his extensive review, Justice Tulloch has concluded that police should not engage in carding or performing random street checks based on race alone or stopping people in order to fill a quota.

 According to Justice Tulloch,

There is little to no evidence that a random, unfocused collection of identifying information has benefits that outweigh the social cost of the practice. … Given the social cost involved with a practice that has not definitely been shown to widely reduce or solve crime, it is recommended that the practice of randomly stopping individuals to gather their identifying information for the creation of a database for intelligence purposes be discontinued.

Justice Tulloch did acknowledge that street checks are useful in cases where there are suspicious circumstances, or when police need to identify the identity of a missing person or crime victim.

Justice Tulloch, in his report, provided 104 recommendations on how to improve Regulation 58/16. He has recommended that the government take a harder line on street checks, that definitions such as “identifying information” and “suspicious circumstances” be tightened up, and that protections during vehicle stops be broadened. He has also suggested better police training in order for officers to understand the difference between legitimate street checks and illegitimate carding.  Justice Tulloch also recommended standardized data collection of police interactions and more local hiring.

It is uncertain, at this time, whether any of these recommendations will be implemented by the current Ontario Conservative government.

In response to Justice Tulloch’s report, Community Safety and Correctional Services Minister Sylvia Jones stated:

We continue to review and assess the recommendations made by Justice Tulloch. His report will inform our work, as we fix the Liberal’s broken police legislation. Our new police legislation will reflect a simple principle: racism and discrimination have no place in policing. You can count on us to ensure that our legislation enables police to protect the law-abiding people of Ontario.

We will continue to follow any developments regarding Justice Tulloch’s report as they become available, and will provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about any charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.