The legal opinion on “carding”

By Patrick Hunter Wednesday March 19 2014 in Opinion
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The Chair of the Toronto Police Services Board (TPSB), Dr. Alok Mukherjee, asked the Addario Law Group last December to provide a legal opinion on the issue of “carding” as practiced by the Toronto Police Service. This is in preparation to develop a policy on the issue – a practice that has, through the investigations of the Toronto Star, shown that African Canadians are most impacted.


Carding is from my point of view, and those of many others, a way of developing a database record of individuals with whom the police have had contact. Now, in some cases, that contact is understandable. If a crime has been committed, the police may speak to individuals in the vicinity who may have witnessed the crime, or for further investigation.


What has happened that has taken this matter beyond the immediate or potential witness situation, is that many young Black men are being stopped, their names and information recorded, in the absence of any specific circumstance such as the commission of a crime. In essence, the Star’s investigations found that the only possible rationale for the stops and recording – carding – was the fact that these individuals were Black.


The police contend that the procedure is a useful investigative tool. Of course, as I note above, it can be when practiced as it should be. However, a line is crossed when there is no clear rationale for a stop, and it is further complicated by the fact that a record of this contact is kept in a database, obviously for future reference. That person, having done nothing wrong, becomes a person who is known to the police, and further, would probably be subjected to detention by circumstance rather than evidence.


In the review of the Board’s proposed policy, Addario offered this striking observation:


“The police can ask questions of any person from whom they think they might obtain useful information. They do not require any special power to do this. The citizen, for his part, is not required to answer or participate in the interview. The police do not have a general power of detention for investigative purposes and thus the citizen has the right to walk away.”


The fact is trust in the police by the Black community under circumstances like these is ambiguous. It would be difficult for most young people to “walk away”. Instantly, the belief is that the police would interpret this as having something to hide.


Addario recognized this aspect of the debate, stating: “There are three ways in which the police can detain someone: physically, by psychological restraint with legal compulsion and by psychological restraint without legal compulsion… The general description of psychological restraint is where the police conduct would cause a reasonable person to think he was not free to go and had to comply with the police demand or direction.” I daresay that in most circumstances, the police officers involved in encounters like this would communicate in such a way that until they dismiss you, you had better stay and answer their questions.


Addario does address this by saying that “the language the officer uses can be decisive in determining whether a citizen is detained”; detention being the difference between whether someone can walk away, and whether someone may be under suspicion. At least, that is my interpretation. The fact is that apart from a lawyer or law student – or someone with specific knowledge – most would not feel comfortable in walking away, fearing consequences. And that is the substance of “psychological detention”.


The reality in this debate is that the police have enormous power – power to make one’s life a living hell. That reality, combined with the history of police-Black community relations, plus racism, make it difficult, to say the least, to break through that cycle of distrust. No matter what the policy dictates the language the police should use in contact situations, an undercurrent of distrust will emerge. It could be through the tone of the delivery by the officer, or the interpretation by the individual of what is said. You may be told that you have the right to remain silent, but in reality you are also told that if you have nothing to hide, you should speak up. The fact is that if you remain silent it is often construed as having something to hide.


The clear option therefore is that “carding” must stop.


The Black community has, from my point of view, long been viewed as a hub of criminal activity. From driving-while-Black to criminal gangs, the expectations of the community by the powers-that-be have largely been negative. The Commission on Systemic Racism in the Criminal Justice System and subsequent reports have been witnesses to that assumption. The politicians seem to endorse that attitude by parlaying “remedial” efforts into harsher laws and penalties that appear to have a greater impact on Black people.


We, as a community, may never emerge successfully from that stigma or stereotype. When we think we have put one aspect to bed, another equally damning aspect emerges. The struggle never ends.

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