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August 31, 2015

Ministry of Community Safety and Correctional Services
9th Floor, Policy and Strategic Planning Division
25 Grosvenor Street
Toronto, ON
M7A 1Y6
Dear Sir/Madam:

Ontario Proposed Regulation for Street Checks Consultation

The South Asian Bar Association of Toronto(SABA Toronto) welcomes the opportunity
to participate in the consultation of the Ministry of Community Safety and Correctional
Services(MCSS) call for public input regarding the practice of police forces in Ontario
known as "carding." Referred as "street checks" in the discussion paper issued by the
MCSS1, carding is the practice by police forces to randomly "engage and record
interactions with individuals whose activities or presence within their broader context
seem out of the ordinary" and "record that information into a police database so that other
officers are aware ofthe suspicious activity and can monitor it."
As we communicated to Minister Yasir Naqvi in July 2015, we advocate for a permanent
ban or prohibition on carding and street checks. This would include the destruction of
collected carding information that, in our view, has been obtained unconstitutionally and
the preservation of which is discriminatory. It would also include a prohibition on
officers keeping notes from street checks in officer memo books. Nonetheless, it appears
that the Ontario government intends to proceed with regulations intended to standardize
police checks.
Echoing the concerns raised by the African Canadian Legal Clinic, the Ontario Human
Rights Commission, the Canadian Association of Black Lawyers, the Law Union of
Ontario and the Ontario Bar Association, SABA Toronto sees carding as a practice that
disproportionately impacts the privacy, constitutional and human rights of racialized and
visible minority populations in Ontario. Carding undermines MCSS's commitment to
ensure the equitable policing of communities in Ontario that complies with and respects
the rights of all Canadians under the Canadian Charter ofRights and Freedoms and the
Ontario Human Rights Code.
SABA Toronto is a voluntary bar organization and the local Toronto chapter of SABA
North America. SABA Toronto provides professional growth and advancement for South
Asian lawyers in the Greater Toronto Area and seeks to protect the rights and liberties of
the South Asian community across Ontario. The Toronto chapter of SABA was formed in
1 Ontario, Ministry of Community Safety and Correctional Services, Ontario Proposed Regulationfor
Street Checks Consultation Discussion Document(Ontario, 2015), online: <>
(Discussion Paper).

2005 by a small group of lawyers who felt the need for an organization to represent the
interests of South Asian legal professionals in the Greater Toronto Area. Since its
inception, SABA Toronto's membership includes lawyers from all sections of the
profession, including law firms, corporations, the government and non-profit
organizations, and members of the academy and the judiciary. SABA Toronto is the
leading voice of the South Asian bar in Toronto. This submission was formulated by
SABA Toronto's Standing Committee on Advocacy and volunteers from SABA
Toronto's membership.

Defining Carding: Keep it Simple(and Reduce Discretion)

The MCSS has described carding as the act by police to:

engage and record interactions with individuals whose
activities and/or presence within their broader context (e.g.,
location, time, behaviour, etc.) seem out of the ordinary.
For example, if a police officer comes across an individual
apparently loitering, late at night, in an area that has been
experiencing an increased number of break-ins, the officer
should be able to ask the individual what they are doing
there, and ask for their name and other information to
identify them. That information could be entered into a
police database so that other officers are aware of the
suspicious activity and can monitor it.
The Discussion Paper proposes to define carding as a voluntary interaction between a
police officer with members of the public whose activities or presence are perceived to be
out of the ordinary within their broader context. In SABA Toronto's view, the discretion
afforded to police officers under this definition is unacceptably broad and unguided. In
practice and under the described circumstances, the description of this program as
"voluntary" could not be further from the truth. Where a police officer engages with a
member of the public based on the assumption that the member of the public is already
acting out of the ordinary, the failure of these member of public to cooperate and interact
with police officers only leads to an increase in suspicion and further assumptions of
criminal activity.
A more accurate definition of carding should be: "an interaction between police officers
and members ofthe public where members ofthe public after being informed that their
engagement with the police officer is voluntary, consents to the police officer collecting
and recording information about them."
Building on the recommendations by the Ontario Human Rights Commission and the
Law Union of Ontario, SABA Toronto believes police officers should only be allowed to
approach an individual in a non-arrest scenario to ask for and obtain information from a
member of the public and record that information in a database under very limited

The officer believes on reasonable grounds that the approach and request for
information is imminently necessary for the:



investigation of a specific offence;


prevention of a specific offence;


protection of the individual or another identified person; and


securing a potential crime scene, participating in a security detail or acting

in an emergency and requests identification from an individual in a
restricted area or seeking to enter a restricted area to determine whether
the individual should have access to the area and under what conditions.

The following circumstances are a non-exhaustive list of circumstances in which

the practice of carding should not be permitted:

an unspecified future offence or criminal investigation;


a "hunch" or unsupported suspicion or belief, whether based on intuition

gained by experience or otherwise;


mere presence in a particular neighborhood, high-crime neighborhood or

"hot spot";


a suspect, victim or witness description that lacks sufficient detail other

than race;


meeting a quota or performance target for number of stops or street

checks; and


raising awareness of police presence in the community.


There must be an honest belief by the officers initiating contacts that there is a
nexus or connection between member of the public and the specific offence to
reduce the potential for misinterpretation or abuse of policy.


Officers must communicate the justification for the interaction with the member
of the public and why they are initiating contact with the member of the public
prior to collecting any information for the member of the public. Officers cannot
provide false advice to the individual to psychologically compel the person to
provide information to the officer.


To the extent the member of the public approached by the police officer is a
minor or English is a second or foreign language, the police officer should be
required to ensure that the individual can understand the justification.


Information collected by officers under these circumstances ought to be limited to

personal information or information about those individual's circumstances.


Standards for Constructing Street Checks: Voluntary Carding is a Two-Way


In recent months, the impacts of the harm and victimization caused by carding has
achieved national prominence in both ethnic and mainstream media in part due to

Desmond Cole's description of his "voluntary" interactions with police forces in Ontario
on over 50 occasions because he is black.2
As a consequence, at the start of each engagement, police officers must advise the
member of the public:

the reason why they have been retained;


that they have the right to a lawyer and be allowed to speak to a lawyer in
private as soon as possible if they ask to do so;
the member of the public has the right to refuse to answer questions;
responses to the request may be used as evidence
the member ofthe public is free to leave the "contact" at any time; and
any personal information they provide will be retained in a police
intelligence database.

Further while police officers ought to be mandated to collect personal and demographic
information from the member of the public, members of the public ought to be provided
the opportunity to collect information about the police officer at the time of the voluntary
engagement with the police officer. This information ought to include at minimum;

the officer's name, badge number and division;


the location, date and time of the contact;


the reason for the contact in sufficient detail as to why that particular
individual was selected for a street check;


a copy of the information collected by the police from the member for the
public; and


where the member of the public can find further information about the
carding policy of the MCSS and how the MCSS would ensure the safety
and security of the same information.

This information should be provided to the individual at the time of the interaction, in the
form of a "receipt". Further, the individual should have the right to record the contact (for
example, using his or her cell phone) and the officer should also have the right to record
the contact.
The requirement to provide this information would prove to be a deterrent to improper
carding and would be a small step towards providing reassurance to the individual being
approached that they are aware of the circumstances in which it occurs. This information

Desmond Cole,"The Skin I'm In: I've been interrogated by police more than 50 timesall because I'm
black", Toronto Life(21 April 2015), online: <www,>.

would also mean that the police services would have access to more accurate information
about the nature, frequency, and location of carding interactions.

Collection of Information

Any information collected during street checks ought to subject to stringent privacy
regulations similar to the provisions applicable to public institutions under the Access to
Information Act, Privacy Act and Freedom of Information Act. As a minimum, any
proposals to regulate street checks ought to be subject to a thorough privacy impact
assessment to determine the potential impact of these regulations to an individual's
privacy if the information is shared across police departments, and government
SABA Toronto advocates for a permanent ban or prohibition on carding and street
checks. If the Ontario government proceeds with regulations intended to standardize
police checks, we hope this submission is of assistance to you. We also strongly urge the
government to refer the proposed regulations to the Court of Appeal for Ontario to
determine compliance with the Canadian Charter ofRights and Freedoms.
Yours sincerely,