Carding Finally Discussed at Supreme Court

Toronto has the most diverse population in Canada, and possibly the word. The myriad of different cultures and ethnicities not only co-exist, but largely mingle and interact on a deep level that is likely not seen anywhere else.

At the same time, the diverse populations of Toronto have a complicated relationship with police services, who they often perceive as treating inappropriately, based on stereotypes, prejudices, or even racial profiling. There are many reasons for this, but they include the challenge of many officers living or growing up outside these diverse communities, police divisions under financial and resource strains, and occasionally, governments who are more interested in arrests than they are successful convictions.

One of the most contentious challenges has been carding, the use of databases by police, known as a Field Information Report (FIR), to try to establish social connections between randomly stopped community members. These connections are then used for investigative purposes, and at times, to make allegations of gang or organized crime affiliations. The problem with these individuals who are detained is that they typically have never done anything wrong or illegal, and their impressions of law enforcement, and the justice system as a whole, are therefore coloured through these interactions.

A review of some of these practices, the legal challenges to them, and some of the difficulties in collecting information, are detailed here. Similar practices, which are also known as street checks, street intelligence Reports, and contact interviews, are also used, and they are used across Canada. Despite the controversy around these practices, it has never been discussed at the Supreme Court of Canada, until their recent decision in R. v. Le.

I’ve summarized the Court of Appeal decision previously, as well as some of the shortcomings of their conclusion. Fortunately, the majority overturned this decision, drawing on some of the intersectional studies demonstrating racial disparities in policing in Ontario, and said,

[95] The impact of the over-policing of racial minorities and the carding of individuals within those communities without any reasonable suspicion of criminal activity is more than an inconvenience. Carding takes a toll on a person’s physical and mental health. It impacts their ability to pursue employment and education opportunities (Tulloch Report, at p. 42). Such a practice contributes to the continuing social exclusion of racial minorities, encourages a loss of trust in the fairness of our criminal justice system, and perpetuates criminalization (see N. Nichols, “The Social Organization of Access to Justice for Youth in ‘Unsafe’ Urban Neighbourhoods” (2018), 27 Soc. & Legal Stud. 79, at p. 86; see also Ontario Human Rights Commission, Under Suspicion: Research and Consultation Report on Racial Profiling in Ontario (2017), at pp. 31-40).

[96] These reports represent the most current statement on the relevant issues, and they originate from highly credible and authoritative sources. They are the product of research that included the time period at issue in this case. More importantly, they document actions and attitudes that have existed for a long time. A striking feature of these reports is how the conclusions and recommendations are so similar to studies done 10, 20, or even 30 years ago. These reports do not establish any new fact, but they build upon prior studies, research and reports and present a clear and comprehensive picture of what is currently occurring. Courts generally benefit from the most up to date and accurate information and, on a go-forward basis, these reports will clearly form part of the social context when determining whether there has been an arbitrary detention contrary to the Charter  .

[97] We do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities (see D. M. Tanovich, “Applying the Racial Profiling Correspondence Test” (2017), 64 C.L.Q. 359). Indeed, it is in this larger social context that the police entry into the backyard and questioning of Mr. Le and his friends must be approached. It was another example of a common and shared experience of racialized young men: being frequently targeted, stopped, and subjected to pointed and familiar questions. The documented history of the relations between police and racialized communities would have had an impact on the perceptions of a reasonable person in the shoes of the accused. When three officers entered a small, private backyard, without warrant, consent, or warning, late at night, to ask questions of five racialized young men in a Toronto housing co-operative, these young men would have felt compelled to remain, answer and comply.

[emphasis added]

These conclusions were not made for the purpose of making a determination of fact that racial profiling existed. Instead, the Court used this social context to inform their detention analysis under s. 9,

[75] At the detention stage of the analysis, the question is how a reasonable person of a similar racial background would perceive the interaction with the police. The focus is on how the combination of a racialized context and minority status would affect the perception of a reasonable person in the shoes of the accused as to whether they were free to leave or compelled to remain. The s. 9 detention analysis is thus contextual in nature and involves a wide ranging inquiry. It takes into consideration the larger, historic and social context of race relations between the police and the various racial groups and individuals in our society. The reasonable person in Mr. Le’s shoes is presumed to be aware of this broader racial context.

[76] In contrast, the concept of racial profiling is primarily concerned with the motivation of the police. It occurs when race or racial stereotypes about offending or dangerousness are used, consciously or unconsciously, to any degree in suspect selection or subject treatment (Ottawa Police Service, Racial Profiling (June 27, 2011), Policy No. 5.39 (online), at p. 2).

Because of the subjective perceptions of the accused was informed by this context, it informed their understanding of whether they were free to leave the backyard when the police arrived. Their own lack of personal experience with the police was immaterial, as was any motive of racial profiling by the police, because the perspective of a reasonable person in the shoes of the accused would be aware of the broader context of police relations in the neighbourhood.

The courts below had erred specifically by transforming the detention analysis from an objective one to a subjective one, by prioritizing the views of the accused,

[115] Undue focus on subjective perceptions detracts from the underlying rationales for adopting an objective test, of which there are at least three. First, as this Court held in Grant, the objective nature of the analysis enables the police “to know when a detention occurs [and, therefore,] allow[s] them to fulfill their attendant obligations under the Charterand afford the individual its added protections” (para. 32). Second, the objective nature of the analysis ensures that the rule of law is maintained in the sense that the claims of all individuals will be subjected to the same standard. That is, the objective standard ensures that all individuals will be treated equally and enjoy the same Charterprotections regardless of their own subjective thresholds of psychological detention or their individual perceptions of police interactions. In other words, the objective nature of the analysis leads to some level of uniformity in applying the Charter to police conduct. Third, and relatedly, the objective nature of the analysis accounts for the reality that some individuals will be incapable of forming subjective perceptions when interacting with the police.

[116] The focus of the s. 9 analysis should not, therefore, be on what was in the accused’s mind at a particular moment in time, but rather on how the police behaved and, considering the totality of the circumstances, how such behavior would be reasonably perceived. To find otherwise puts the onus on the claimant to gauge correctly when they are detained and when they are not. This very problem arises in this case. Mr. Le testified that he was not permitted by the police to go into the house and was physically prevented from doing so. If one accepts Mr. Le’s full account of events, then his subjective perception, howsoever fleeting, that he could go into the house was simply wrong. Further, if, as our colleague concludes, the detention occurred when the officer told the young man to keep his hands visible, Mr. Le’s subjective perception would have arisen only after the detention had already begun. Even accepting that there may be cases in which the subjective perception of the accused is relevant, this case cannot be one of them.

The dissent by Wagner C.J. and Moldaver J., in contrast, focused on an entirely on a different grounds of deference on finding of facts to the trial level judge. They held that the admission of evidence would not bring the justice system into disrepute, given the very serious facts admitted by the accused, and the nature of the crimes involved.

However, even the dissent disagreed with the trial judge’s finding of implied license allowing the police to enter the backyard, violating s. 8. The majority had simply assumed the entry was lawful, moving on to focus on a far more extensive analysis under s. 9.

The dissent indicated that the doctrine had a foundation in facilitating convenient communication with occupants in a home, but still had some limitations,

[211] Where, as here, the police can readily make contact with a potential owner/occupier from outside the property, it is reasonable to expect that they would first attempt to gain permission before entering in reliance on the implied licence doctrine. This requirement guards against unnecessary intrusions on the owner/occupier’s property and privacy rights. Therefore, in my view, the implied licence doctrine could not apply in the circumstances of this case, at least not until the police attempted, from outside the fence, to ask the young men, one of whom was in fact an occupier, for permission to enter. Consequently, the police were trespassers from the moment they set foot on the property.

[212] To be clear, however, this is the sole reason why the implied licence doctrine could not apply in the present case. Although the implied licence doctrine does not permit the police to “approach a dwelling with the intention of gathering evidence against the occupant” (Evans, at para. 16), these words should not, in my view, be read as creating a general prohibition against police approaching a dwelling in order to question the owner/occupier for the purpose of furthering a lawful investigation. The trial judge in the present case found as a fact that the police had three investigatory purposes for entering the backyard: (1) to investigate whether any of the young men were J.J. or knew the whereabouts of N.D.-J., both of whom were wanted by the police; (2) to investigate potential drug trafficking in relation to the property, having been advised that it was a “problem address” for drug trafficking; and (3) to investigate whether the young men were trespassers on the property…

[213] Accepting that the police entry was not justified under the implied licence doctrine due to the absence of a need to facilitate convenient communication, the trial judge’s finding that the police had legitimate investigatory purposes for entering the backyard and speaking to the young men is nonetheless entitled to deference. This is so even if, as my colleagues maintain, the police were not justified in entering the backyard in order to investigate whether the young men were trespassers (see paras. 130 and 133). Be that as it may, two valid investigatory objectives remain: (1) to investigate whether any of the young men were J.J. or knew the whereabouts of N.D.-J.; and (2) to investigate potential drug trafficking in relation to the property.

[emphasis added]

The dissent poses a curious question, one where errors of law are made at the trial level, but still provided curial deference. Given that these errors relate to issues of systemic racism, which is itself directly related to constitutional principles under s. 15 of the Charter and the Human Rights Code, that assumption simply cannot be sustained.

They also provide a reminder of the inherent limitations of the entire justice system, including the actors within it, and the implicit biases or understandings we may have or not have. I described this in part this past week at the Ontario Bar Association’s Annual Update on Human Rights, where I pointed to David Hulchanski’s “The Three Cities Within Toronto.” These socio-economic divisions also roughly align with ethnic and cultural data, meaning that the most affluent residents in Toronto do not have the same level of deep and meaningful interactions with diverse populations.

Of course the vast majority of the legal profession also hails from these higher socio-economic rungs, especially with rising tuition rates, suggesting that the the profession as a whole is largely inept with cross-cultural competency. The contact hypothesis, which suggests that stereotypes and prejudices are only really broken down through prolonged, deep, and meaningful experiences with diverse populations, are experiences that largely elude wide segments of the population, including in the legal profession.

The police also struggle with this skills deficit, with a force that is far too often inept when it comes to these life experiences. A study by The Globe earlier this year found that 3/4 of uniformed officers in Toronto lived outside the city, where they discuss the “commuter cop” debate, and whether it creates a disconnect between the officers and the communities they are sworn to serve,

The majority of the force’s roughly 5,000 uniformed members live in surrounding outer suburbs such as Halton, Peel and Durham, according to analysis by The Globe and Mail of partial postal-code data obtained through a Freedom of Information request – but many also live in communities as far away as Barrie, Ont., and Lincoln, Ont.

According to The Globe’s analysis, 75.3 per cent of uniformed TPS members resided outside Toronto as of Dec. 10, 2018.

Comparatively, in the country’s capital, the Ottawa Police Service said 27 per cent of its police officers live outside its jurisdictional boundary. But in Vancouver – where real estate is notoriously expensive – approximately 83 per cent of sworn officers live outside the city.

Although a formal residency requirement would be inappropriate and likely unconstitutional, a recruitment focus on cultural competency skills could compensate for this trend.

What we push for with Equity, Diversity and Inclusion (EDI) initiatives in law is not as simple as improving quantitative representation of diverse populations. That would be a highly tokenistic approach, which could be simply accomplished by the exclusive inclusion of seemingly diverse individuals who are ideologically, cognitively, and experientially no different than dominant populations.

Instead, the desired qualities are skills-based, which can and should be fostered over a lifetime. In this manner, competence is understood as an ongoing process, and is not limited as belonging exclusively to identifying populations. While the life experiences of an individual from a historically marginalized community is certainly important, identification alone is not a guarantee of competence, especially as it relates to other populations and communities. In this way, we understand EDI as a competency that all lawyers need to address, as a necessary component of modern practice.

When discussing implicit bias, I suggested that the ones who suggest they are completely immune to these types of heuristic thinking are the ones most prone to doing so. The importance of the legal profession engaging in this exercise, and doing so as part of our professionalism, is paramount given the inherent shortcomings of other institutions in our democracy.

The decision in Le was informed in large part by interveners with expertise in the discriminatory aspects of this context, as well as some of the contemporary studies on the subject such as the 2018 OHRC interim report, A Collective Impact, and the Independent Police Oversight Review (the “Tulloch Report”). In my submissions on Bill 68 to the Standing Committee on Justice Policy, which dealt with the implementations of the Tulloch Report, I stated,

47. Efforts to bolster transparency should not be perceived as an attack on police services, or
legislation that is anti‐police. There are many individuals within the police services who indeed support greater transparency.

48. The public and the police have a symbiotic relationship. Both benefit when the public has greater
confidence and trust in the police services that are expected to serve and protect.

49. Transparency should not be perceived as being intended or used to unduly scrutinize police
actions, or provide criticism where it is not warranted. Instead, transparency of police conduct
can: demonstrate the basis for police activities, provide the rationale for actions undertaken, and
highlight the often complex and challenging nature of police officers’ jobs. Transparency can
illustrate how police are doing their job well.

50. Many of the Indigenous, Black, and other racialized communities in Ontario have a tumultuous
relationship with police services. This is based on history, respective cultures, and misguided
tactics employed by those in power. A push for greater transparency is an attempt to help address
these concerns, and reconcile differences.

I reiterated this sentiment in my oral submissions to the committee,

I do want to emphasize that my submissions, despite highlighting the plight and the perspectives of the Indigenous, Black and racialized communities all across Ontario but particularly in Toronto, should not be construed as an undue attack or an anti-police sentiment.

In fact, it’s quite the opposite.

As an officer of the court, as a lawyer who is working within the justice system, it is of particular concern that certain segments of our population have the sentiment and the appearance of law enforcement, and the legal system as a whole, that they do.

The reason for these submissions is that the government characterized Bill 68 as necessary given the “anti-police” orientation of the preceding Bill 175. This type of characterization was also addressed in full by the majority in Le,

[165] Requiring the police to comply with the Charter in all neighbourhoods and to respect the rights of all people upholds the rule of law, promotes public confidence in the police, and provides safer communities. The police will not be demoralized by this decision: they, better than anyone, understand that with extensive powers come great responsibilities. We share the view of the House of Lords, when rejecting the idea that imposing liability on the police would have similar consequences, that “Her Majesty’s servants are made of sterner stuff” (Dorset Yacht Co. Ltd. v. Home Office, [1970] 2 All E.R. 294, at p. 1033, per Lord Reid).

There is no better statement than this on any discussions of the efficacy or propriety of carding as an investigative technique.

Omar Ha-Redeye discussing cultural competency at the Ontario Bar Association's 2019 Annual Update on Human Rights

Omar Ha-Redeye discussing cultural competency at the Ontario Bar Association’s 2019 Annual Update on Human Rights

 

Comments

  1. Michael Benoit

    Good discussion…and given MMIW report, all levels of government have some reflection to do on the legislative instruments meant to be inclusive of all Canadians.

    Good read

  2. Michael,
    Even more than in this case, MMIW is relevant in light of Barton, which I hope to touch on in the near future.
    Thank you as always for your interest and in reading.

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