Toronto has a new police chief, Mark Saunders, and there are hopes across much of the city that he’ll stop the racially tainted practice known as “carding”.
From the public’s perspective, it’s hard to understand why the police stop people when there’s no crime being investigated.
Yet at its height, which is recently, the police were stopping 370,000 people a year. They must believe that it’s essential to randomly stop members of the public.
Given the hours involved, we’re talking about a practice that is central to the very model of policing in this city. And there are reasons for this.
If you are a police officer, a criminal lawyer, or a prosecutor, you know why it is so prevalent. Drugs and guns are difficult to uncover. Crime in general usually happens behind closed doors and the opacity of anonymity.
If the police didn’t randomly stop people when they were out and had the off-chance of getting behind that curtain of privacy, they’d severely limit their investigative options.
And there would be a precipitous drop in recorded crime.
An Investigative Lottery
Carding is not simply about building a database of community engagements. After all, the vast majority of that data is completely useless.
Through carding, what the police do in large part is try to precipitate the chance discovery that the person in front of them is carrying some kind of contraband. Secondarily, if that does not happen, the police will record information about the detainee that can help police on a follow-up occasion to build the grounds to target that person for a criminal investigation. Next time they’re stopped.
It doesn’t matter if it takes a hundred stops, a thousand, or even ten thousand from the perspective of the police. Eventually they will come up with something if they keep trying.
Nervous glances. Sweating. Hostility. An attempt to walk away, or run.
The hope is that something will happen during one of these so-called “community engagements” that identifies the person they are talking to as a criminal suspect who may even be in the current possession of drugs or a weapon.
From the adversarial point of view in which this strategy develops, the alternative to the police is simply to sit in the station and wait for a 911 call.
It may happen that an innocuous or possibly hostile reaction by the person being stopped is misinterpreted by the police. The officer may jump to the wrong conclusion and arrest or search a detainee who doesn’t actually have any drugs or contraband.
Or the information that comes up in the carding database, if it is utilized during the interaction, could be wildly off base.
That doesn’t really matter from the point of view of a carding encounter. Resistance, talking back, general hostility – all of these may be “arrestable” actions in the minds of a police officer. Typical charges that come from this kind of interaction are obstruct or assault police.
A Problem That’s Been Around for a While
This may not be how things should happen, but it is the reason so many people simply bide their time while they are subject to a humiliating stop in the first place. As our Supreme Court noted many years ago in a case called R. v. Therens:
Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand.
To the vast majority of people subjected to a random carding encounter, it’s preferable to fume silently and then go on one’s way than to get self-righteous about one’s rights.
For those who are in found in possession of an illegal drug or weapon, the Charter will now come to their potential rescue and do for them what it can’t do for the vast majority of those who are stopped and exact some form of justice.
It’s a bitter kind of justice. Evidence gets excluded to remove the taint from the justice system. Judges know that for every guilty person randomly stopped by a police officer with no grounds, there are many others who won’t get their day in court.
Most carding encounters are brief, even if repetitive violations of one’s civil rights. They do not get documented beyond a few data-specific entries in a computer system. They do not get litigated. Police officers do not get cross-examined. There is no full-on civil rights audit as happens in court during a criminal trial.
Most people don’t have a few thousand, let alone tens of thousands of dollars at their disposal to vindicate their Charter rights in a civil context.
Public Perceptions Have Changed
If this practice continues, as most veterans of the justice system might suspect, arguably there is now sufficient public interest and a public record to challenge it in court.
Between innumerable Toronto Star articles to repeated deputations, reports, and hearings by the Toronto Police Services Board, there’s a pretty good public record available to an interested litigant like Toronto’s Law Union or African Canadian Legal Clinic.
Black and brown skinned young men have been the disproportionate targets of carding. That violates their right to equality under section 15 of the Charter.
People have a right to move around public spaces as they wish without being randomly detained. That is a principle of fundamental justice under section 7 and the right to be free from arbitrary detention under section 9 of the Charter.
The “collateral damage,” as the incoming chief put it, of these stops is death by a thousand cuts to our sense of shared democratic rights. But given how deeply entrenched this adversarial practice is, it is highly doubtful that the police will stop. Unless they are forced to by a court injunction.
They did it once and didn’t like what happened. Arrests went down. Police officers likely didn’t know what they were supposed to do.
Of course, “community engagements” might be useful if they truly engaged and supported the community. And police officers could quite easily pre-empt a psychological detention by telling the person they stopped that they were free to go.
But then that person likely would. Because who wants to be subject to the kind of fishing expedition that these stops really represent anyways.