Friday, February 12, 2010

Oversight of Police Carding Practice Required

The systemic practice of the Toronto police documenting individuals as a means of crime control has finally been brought to light. The numbers are staggering. According to the police data analyzed by the Toronto Star, 1.3 million individuals in Toronto were carded by the Toronto Police Service and tracked on police databases from 2003-2008. Carding involves questioning individuals about their name (often with a computer check for verification) including nicknames, age, birth place, whether they are attending school and their parents’ marital status in the case of youth and documenting this information on what are known as “208 cards.” Additional information tracked include the individual’s gender, clothing, body markings, appearance, location of stop, nature of the police contact, and skin colour. The information is then entered on a police computer and kept indefinately. The majority of cards did not relate to specific criminal activity.

But only a select few are part of the carding process.

The data reveals that it is largely youth and disproportionately Black and other racialized youth and adults who are required to regularly identify themselves as a requirement of their right to live and travel in Toronto.

Chief Blair, who is a progressive and thoughtful police chief, candidly acknowledges the practice but argues that it is an important tool in the fight against gangs and guns and an effective way in which to keep the streets of Toronto safe. And, it is true that carding has proved successful in solving some serious crimes. But this misses the point. It would, no doubt, be of great assistance to the police to have fingerprints or blood samples of every individual in Toronto to investigate unsolved homicides, robberies and sexual assaults. But as that old and wise adage goes -- the ends do not justify the means.

A powerful response to the issue of investigative necessity was provided by Justice Harry LaForme, a well respected jurist who is now on the Ontario Court of Appeal, in a 2004 case. In R. v. Ferdinand, Justice LaForme was clearly troubled upon learning that the officers in the case regularly filled out between 15-45 “208” cards per shift:

"Although I do not dispute that 208 cards might well be a useful and proper investigative tool for the police; in my view the manner in which the police currently use them make them somewhat menacing. These cards are currently being used by the police to track the movements – in some cases on a daily basis – of persons who must include innocent law-abiding residents."

"One reasonable – although very unfortunate – impression that one could draw from the information sought on these 208 cards – along with the current manner in which they are being used – is that they could be a tool utilized for racial profiling."

"… I make my observations only to express a profound note of caution. If the manner in which these 208 cards are currently being used continues; there will be serious consequences ahead. They are but another means whereby subjective assessments based upon race – or some other irrelevant factor – can be used to mask discriminatory conduct. …"

"This kind of daily tracking of the whereabouts of persons – including many innocent law-abiding persons – has an aspect to it that reminds me of former government regimes that I am certain all of us would prefer not to replicate."

In 2007, I analogized the practice of mass carding in an op-ed to the “No Fly List” that has been created in the war on terrorism calling carding a “No walk list”. What makes the practice of carding even more problematic, however, is that there is no oversight, no redress or ability to have the information removed and the process often includes an interrogation and personal or vehicle search. Moreover, police interactions are inherently coercive especially for already marginalized individuals and both the fear of knowing that you could be carded at any time and being carded creates tremendous psychological harm, alienation and mistrust of the police. These harms distinguish carding from other forms of police surveillance such as cameras on the street.

The practice of detaining individuals for the purposes of carding in the absence of reasonable grounds to suspect criminal activity has been declared by our courts to be unlawful. In R. v. Linton, Justice MacDonnell observed that detaining individuals “for the purpose of requiring them to provide identification” is “unjustified” and unlawful. He saw the practice as giving the police “a general warrant to detain for investigation anyone found in a troubled neighbourhood.”

This judicial oversight may not, however, be effective enough. For one thing, it is clear that the police have no intention of heeding the warning by Justice LaForme. More fundamentally, aggrieved individuals are not likely to have the resources, will or trust in the system to seek a remedy in our courts.

Therefore, additional oversight is necessary. Carding raises concerns about racial profiling, privacy, ensuring that individual’s are aware of when they are free to refuse to participate, as well as concerns about retention of information and the ability of individuals to find out about what is being recorded on police databases.

There are a number of agencies who could investigate, set limits on the practice, provide guidelines on access and retention and finally to provide education about rights. They include the Ontario Human Rights Commission, which is working with the Toronto Police Service on a project aimed at addressing racial profiling; the Office of the Information and Privacy Commissioner (Ontario) which recently investigated the practice of the police providing Crown Attorneys with computer information about prospective jurors (which no doubt included information obtained by carding) and the new Office of the Independent Police Review Director which has the power to investigate systemic issues such as carding.

Posted by Professor David M. Tanovich

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