Despite months and in fact years of back and forth, it’s now official that the Toronto police will continue to use a tool known as carding.
The new police chief, Mark Saunders, has announced that he stands by the practice.
Carding was described by the National Post recently as an act “whereby officers stop people not under arrest or investigation and record their information in a database”.
Legal organizations may be intent on getting the police to stop by going to court to seek an injunction or whatnot, but that’ll take some time. During the interim, it seems possible if not likely that many people would like to know, what do you do if you are stopped by the police and asked to provide them with your ID?
Ask the Right Questions
The options facing someone who’s being carded by the police may seem stark: to either meekly comply with the request and let their anger build up inside, or challenge the legality of what the police are trying to do
Let’s break this down, because it helps to understand what it means to be “stopped” by the police. To do this, you have to travel inside the mind of the person being approached.
You can start by asking yourself what you would do in the same situation. In my mind, for example, if a police officer asks me anything, I feel like I have no choice. Psychologically, I stop dead in my tracks.
That’s me, and I’m a criminal lawyer. I’ve argued a ton of cases on this very issue. I’ve cross-examined police officers. I know my rights. Yet, if I’m asked a question by an officer, I still feel psychologically detained.
The reason is, when a police officer asks you a question, you don’t know if they are in the middle of an investigation or not. You don’t know the state of play.
An investigation may have started before the officer stopped you, when he did, or while the conversation ensues. In any case, if you are being investigated or even if someone else is, it doesn’t matter if you are innocent, you could still end up being charged with something.
To put it to an extreme case, if an officer grabs you by the arm and you wave that arm off, you could be charged with assaulting a peace officer. If you get in the way of his investigation, you could be charged with obstruction.
There have been too many cases where people are charged simply because of how an interaction with an officer evolves.
These are just some of the reasons why police-civilian interactions can be fraught with unforeseen consequences. Yes, you have rights. But the key is to understand how to navigate the shoals between the duties of a police officer and the rights of a citizen.
“Am I being investigated?”
Your first question should be, “Officer, am I being investigated?”
In reality, even a uniformed police officer may not give you a true answer. An undercover operation could be under way. If so, the officer will lie.
It doesn’t matter. The purpose of the question is to raise the issue of your civil rights. Asking if you are under criminal investigation does that.
No matter what the answer is, you’ll follow up with a second question, and that is: “Alright Officer, am I free to go?” Under the community engagement policy, if this is a community engagement, the officer has to tell you that you are free to leave.
If you are free to leave, the psychological chains will suddenly break loose and, unless carding procedures change, my advice would be to politely say “thank you, have a nice day” and get the hell out of there.
These are Not Community Engagements, They’re Hostile Encounters
You might say, why not simply comply with the request, hand over your ID, and help the police do their job?
Well, that can be your choice, if you don’t mind being stopped when you’re not doing anything wrong, having your identification added to a police database that could be then used to arrest you in the future, and helping to validate a process that violates your right to move about society without interference.
Carding is just not community-friendly. It’s the not-too distant relation of the old charge of loitering, which gave police leeway to harass people for simply lounging about in public.
In a previous post, I wrote why the police cling to the practice. It’s the way they do business. They’re looking to catch criminals. For the police, even if they have to stop 1,000 innocent people before making a single arrest, they believe, and in fact they know, that eventually an arrest will happen. Statistically, it’s a no-brainer. It’s just not very civil-rights friendly.
The adversarial nature of this whole exercise is underlined by the fact that the police removed a recommendation that they tell people during a carding encounter that they could leave.
If this isn’t a “community encounter,” that’s a whole other story. Anyone under police detention should ask to speak to a lawyer, as is their right. But if you’re free to leave, you need to ask that question yourself. Because under the present policy, that’s a fact the police seem intent on keeping from you.