Address racial bias in policing to stop carding, advocates say

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Kofi Hope was sitting in a car outside a Mississauga nightclub with a few friends trying to decide if they should brave the cold and get in line, when he says several cops suddenly surrounded them with flashlights, demanding they get out of the vehicle.

“They kept saying to us, ‘we know one of you has the record. Who has the record? Who has the record?’ ” Hope, now 35, says of the incident about 15 years ago.

No one did. After looking at all of their IDs, searching them and the car, he says police let the young men go. Hope is not sure what the officers did with his information from that night. But he says he does know he’s been stopped multiple times and he’s not the only one.

“I think most young people of colour in the GTA have had those experiences,” says Hope, a senior policy adviser at non-profit think tank the Wellesley Institute and a Rhodes Scholar.

“It’s disempowering, it’s insulting, you feel unsafe.”

A 300-plus page independent review of street checks known as “carding” that dropped on New Year’s Eve has advocates calling for urgent changes, saying arbitrary and discriminatory street checks like what Hope describes cannot be stopped without measures to address racial bias in policing.

The report from Court of Appeal Justice Michael Tulloch includes a review of the province’s 2017 regulation on carding and concluded that random street checks should be banned as they have little impact on reducing crime and have caused significant damage to racialized communities, especially among youth.

It includes recommendations to clarify when police can stop to collect identifying information outside of an active investigation — including that there should be some suspicion based on objective and credible grounds justifying an inquiry.

“It’s not news to anyone who’s been doing this work, or advocating around carding,” Hope says of the report’s conclusions.

“The issue is not about carding, the issue is about racial bias in policing ” he adds. “Carding is just one manifestation.”

There has to be better training, oversight and accountability, Hope says, because “the consequence of having even a few officers with those views is hugely detrimental.”

Staff Sgt. Valerie Graham of the Peel Regional Police told the Star in an email she’s unable to comment specifically on Hope’s encounter. She said the service follows the provincial legislation on street checks.

“Peel Regional Police has never supported random arbitrary race-based stops of any kind, and if an officer was found to participate in such a stop, they would be disciplined,” she added.

Toronto police Const. Rob Reid told the Star on Monday he and his colleagues take the report “very seriously.”

In the report, Tulloch recommended further training for both front-line and supervising police officers on why the carding regulation was instituted, how it applies and what the legal basis for police stops are. The training should also include bias awareness, he wrote.

Asante Haughton, a 33-year-old peer support leader who says he’s been stopped by police so many times he’s lost count, agrees training is key.

“Just because a bias or a prejudice is there currently doesn’t mean that it’s going to sustain itself if we work intensely against it,” he said, adding carding breeds distrust, which can get in the way of solving actual crimes.

During his teen years living near Regent Park, he says he was stopped going to school, coming home from school, even in front of his own door. He says he’s been stopped at least 25 times, even though he’s never been arrested or involved with gangs.

Haughton knows his rights but says he still gives his info to police every time he’s asked.

“In the moment there’s just this feeling of danger and this feeling of powerlessness, and being hyper vigilant about what I say, what I do. What’s my body language? What’s my posture? Am I behaving in a way that could be perceived in a way that’s resisting or combative in some way?” he says.

“Because ultimately I’m trying to avoid the escalation of a police encounter.”

The report also outlines how officers should conduct and record such interactions, including that, as the regulation requires, the individual must be informed that providing identifying information is voluntary and that the officer must offer to provide a receipt for the interaction.

Tulloch said the person should also be told the specific reason the information is being requested, that the information may be recorded and stored in a police database and that some of the information, such as the person’s religion, is being requested to help eliminate systemic racism.

The 2017 regulation bans collecting identifying information if the stop is arbitrary or based on the person being part of a racialized group. Tulloch recommended this be expanded to include socio-economic status and other prohibited grounds of discrimination under the Ontario Human Rights Code.

Tulloch also recommends the data should be destroyed after five years at the most. That’s something Black Lives Matter Toronto co-founder Sandy Hudson was glad to see, but thinks it should go further.

“Five years is a long time to wait if it’s something that’s preventing you from getting a job,” she says. “Especially the retroactive stuff, can we just get rid of it? We know it’s been collected incorrectly.”

Hudson, like Hope, was happy to see Tulloch’s conclusion that random carding doesn’t serve an investigative purpose, but says it’s not news to communities who’ve been working on the issue.

“We so know this,” she says. “Right now what’s necessary is political will to actually address the racism that our communities are experiencing from the police.”

Sylvia Jones, Ontario minister of community safety and correctional services, has said in a statement the Progressive Conservative government will review Tulloch’s recommendations.

Repeated analyses by the Star of Toronto Police Service carding data have found Black people were more likely than white people to be stopped, questioned and documented in each of the city’s more than 70 patrol zones, and that the likelihood increased in areas that are predominantly white.

A report released mid-December by the Ontario Human Rights Commission into racial profiling and discrimination by Toronto police noted several instances where the Special Investigations Unit found no legal basis for the police to stop or detain Black civilians and heard from Black Torontonians about instances where they were arbitrarily stopped by police while walking or driving.

Toronto police suspended carding in 2015 and now, like all Ontario police forces, are governed by the provincial carding regulation.

Lawyer and community organizer Knia Singh, who has previously shared his experiences with carding with the Star, says he supports enhanced anti-bias training for police officers that involves members of the community who have experienced racial profiling and discrimination. He also wants to see increased oversight and stiffer penalties for police misconduct, saying there should be repercussions when an officer engages in discriminatory behaviour.

He said it is unfortunate that in 2019 resources are still having to be invested in researching these issues and undoing the damage done to communities and trust in police, rather than into crime prevention measures and positive community supports.

“The last line of defence is police officers themselves. Officers have to hold other officers to account,” Singh said. “All as we can do as a community is hope for the officers to make the right decision not to engage in practices of targeting and discrimination and report officers who do … we rely on them to keep us safe and that includes from people in the organization who pose a threat.”

With files from Jacques Gallant and Wendy Gillis

May Warren is a breaking news reporter based in Toronto. Follow her on Twitter: @maywarren11

Alyshah Hasham is a Toronto-based reporter covering crime and court. Follow her on Twitter: @alysanmati

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Toronto’s rising violence can’t be blamed on the decline of carding

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The new year had barely been rung in —12:35 a.m. — when there was a fight on Queen St. W., the victim taken to hospital in critical condition.

By the time this column is published, that man might be Toronto’s first homicide of 2019, blood splatter on a fresh page as the calendar flips. If not him, some other poor soul.

Across the city, violence struck here, there and everywhere on Jan. 1: A shooting, a stabbing, a broken bottle ground into a male’s face, a hit-and-run collision, several vicious kicks to the head.

Doubtless, as right-wing editorial writers sharpen their pencils, as tabloid columnists crank out vilifying copy, somebody will blame the chronic mayhem on law enforcement stripped of their investigative tools. To wit: the curtailment — not necessarily the end — of “carding,” as mandated by Regulation 58/16, introduced by the previous Liberal provincial government in 2016.

The correlation is dubious.

That is one of the findings contained in a 310-page doorstopper of a report by Justice Michael Tulloch, the Ontario Court of Appeal judge tasked with reviewing how the regulation has been applied throughout Ontario and its effectiveness.

Read more:

Will Toronto see fewer killings in 2019? A violent year ends with record totals — and questions

Carding — a subset of street checks — is a bust, the regulation unevenly implemented, with cops largely uncertain of when they can legally stop and query, leading some jurisdictions to completely abandon face-to-face encounters with the public even when they might have reasonable cause to question, as long as it’s not random or arbitrary but based on intelligence-led “articulable cause,” a “constellation of objectively discernible facts.”

The language is lawyerly dense, which is an intrinsic fault of the regulation, writes Tulloch; perceived as “being too complicated and hard to follow,” written for lawyers, not police officers or civilians. “Even lawyers who I have consulted with agree.”

Example: The regulation sets out information that a police officer must record in a “regulated interaction” — those encounters which fall under 58/16. Yet the required information does not include the location of the stop or the age or the race of the person stopped. “Only by inference later in the Regulation — when such information is required to be analyzed — does it become apparent that such information must be recorded in every stop encounter.”

I’ve spent hours poring over the report and am still not altogether certain I understand all its contents. Whose brilliant idea was it to release the thing at 3 p.m. on Dec. 31, the day before a statutory holiday, to be speed-read by reporters, by which time it was well nigh impossible to reach experts in the field who might provide illumination.

Somebody in the government decided to pull that trick. A Tory government which did not set Tulloch upon this year-long review and which could, if it chooses, ignore its numerous recommendations completely.

Tulloch’s core recommendation is blunt: Random carding has minuscule value as a law enforcement tool and should be sharply curbed where it’s still being practised, specifically because its iffy value is not worth the damage caused to individuals — particularly those in disproportionately scrutinized minority communities, Black, brown and Indigenous — to say nothing of heightening distrust between those segments and police.

“It is recommended that the practice of randomly stopping individuals to gather their identifying information for the creation of a database for intelligence purposes be discontinued.”

Purely random stops, absent any discernible subjective and objective reason for doing so, based on some vague “spidey sense”: Never.

“A widespread program of random street checks involves considerable time and effort for a police service,” Tulloch writes, “with little to no verifiable results on the level of crime or even arrests.”

Many cops will disagree. It is precisely the “spidey sense” that informs their policing instincts as front-line officers with intimate knowledge of a place, a neighbourhood, a scene that feels wrong. But that can’t be enough, Tulloch argues, because of either tacit or overt biases. Under the regulation, race is absolutely prohibited in forming any part of a police officer’s reason for attempting to collect someone’s identifying information — information which no individual is compelled to provide unless police are making inquiries into suspicious activities, investigating an offence that has been or may be about to be committed, or gathering information for intelligence purposes, circumstances wherein a suspect can be detained or arrested.

Simply creating a database containing information on tens of thousands of people who’ve committed no crime — the crux of random carding — is a misuse of resources, an invasion of civil rights and indefensible.

It has become to too easy and knee-jerk malevolent to draw a straight line between carding reduced and gun/gang activity increased in Toronto in 2018. In fact, the Toronto Police Service had voluntarily curtailed street checks since 2014. There was nevertheless a significant decrease in gun deaths between 2016 and 2017 before last year’s surge. Between 2016 and 2018, Tulloch points out, the number of shootings declined by a combined 40 per cent in some designated high-priority neighbourhoods with historically high incidences of poverty and crime. Nor did a steep decline in street checks prevent Toronto police from a 65 per cent increase in gun seizures from 2017 to 2018.

More broadly, Ontario experienced the greatest reductions in homicides, along with Saskatchewan, in 2017, the year that the regulation came into effect.

“Overall, it is difficult to see anything contained in the wording of the regulation or in its proper application that would cause a spike in gun crime or violent crime,” writes Tulloch.

It may be true, however — and I wish that Tulloch had undertaken a deeper exploration of this area — that abandoning street checks has contributed to more flagrant gang activity in Toronto.

The argument pro random carding has become circular, says Tulloch. “Some police street checks were proper. The improper practice of random carding led to the Regulation. The Regulation led many police officers to not conduct any street checks, whether proper or not. The lack of any street checks at all might have encouraged some types of crime to increase. This increase in some crimes has led some people to argue that we should return to random carding. This assumes that it was the reduction of random street checks that caused the increase in some crimes, as opposed to the reduction of all street checks.

“The solution to these issues is not for police officers to fail to conduct street checks when it is prudent and appropriate to do so.”

Which means better understanding of the regulation, improved training and “supporting police officers who conduct proper street checks when there is a subsequent public complaint.”

Tulloch emphasizes that the regulation did not, does not, eliminate street checks. “Without any restriction, police officers can stop, question and ask people to identify themselves — if the officer reasonably suspects criminal activity.”

All that’s changed is that there has to be a good, justifiable or “articulable” reason for asking them to provide their identity.

“That is not an onerous requirement.”

Rosie DiManno is a columnist based in Toronto covering sports and current affairs. Follow her on Twitter: @rdimanno

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Little to no proof police carding has effect on crime or arrests: Ontario report

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Police street checks widely known as carding have little to no value as a law enforcement tool and should be significantly limited across Ontario, a judge tasked with reviewing the practice said Monday.

The report from Justice Michael Tulloch outlines certain circumstances in which police may have legitimate grounds to conduct street checks, or stop people at random and request identifying information.

But Tulloch, who was hired by Ontario’s previous Liberal government to assess the effectiveness of new regulations meant to limit the impact of street checks on racialized groups, said those circumstances are very specific and the practice as a whole should be sharply curtailed.

« There is little to no evidence that a random, unfocused collection of identifying information has benefits that outweigh the social cost of the practice, » Tulloch wrote in his 310-page report.

« Given the social cost involved with a practice that has not definitively been shown to widely reduce or solve crime, it is recommended that the practice of randomly stopping individuals to gather their identifying information for the creation of a database for intelligence purposes be discontinued. »

Tulloch, who previously led a review into Ontario’s complex police oversight system, was asked to turn his attention to carding months after the previous government made moves to eliminate what it described as systemic racism in law enforcement.

Police oversight

Street checks started coming under intense scrutiny several years ago amid data showing officers were disproportionately stopping black and other racialized people.

In 2016, Ontario introduced rules dictating that police must inform people that they don’t have to provide identifying information during street checks, and that refusing to co-operate or walking away cannot then be used as reasons to compel information.

The aim was to end arbitrary stops, especially those based on race, though anti-carding advocates have called for the practice to be abolished entirely.

Race is prohibited as forming any part of a police officer’s reason for attempting to collect someone’s identifying information.

Police had long argued that street checks have value as an investigative tool, a notion Tulloch challenged in his report.

« A widespread program of random street checks involves considerable time and effort for a police service, with little to no verifiable results on the level of crime or even arrests, » he wrote. « Some police services reported that there are other ways to gather data or use data that they already have more effectively. »

Tulloch’s report also debunked the notion that carding had played a role in solving the high-profile killing of Cecilia Zhang, a nine-year-old girl who was abducted from her Toronto home in the middle of the night in 2003.

Tulloch said many of the more than 2,000 people consulted for the report cited the arrest of Min Chen, who pleaded guilty to second-degree murder in Zhang’s death, as an example of a carding success story. Tulloch said, however, that Chen’s name first came to be in police files as a result of a non-random stop that did not fit the definition of carding.

On July 22, 2004, Peel police charged a 21-year-old male student from China with first-degree murder in the case of Cecilia Zhang, the nine-year-old girl who disappeared from her parents’ Toronto home. (CBC)

Chen was stopped in response to a complaint of illegal fishing filed weeks before the girl was killed, Tulloch said, adding the information gathered during that interaction later gained relevance when Chen’s name surfaced in the Zhang investigation.

« The Cecilia Zhang case does not support the proposition that the police should be authorized to randomly request and record identifying information, » Tulloch wrote. « It simply reinforces that when identifying information is properly obtained during a police investigation, as it was in that case, that information might be useful to help solve a crime. »

Additional recommendations

Tulloch said street checks have value in cases where there are clear suspicious circumstances, or when police need to identify the identity of a missing person or crime victim. Among his many recommendations to the new Progressive Conservative government were some stating the 2016 rules should not apply in such cases.

But other recommendations advise the government to take a harder line on street checks, tightening definitions of terms such as « identifying information » and « suspicious circumstances » and broadening protections during vehicle stops.

Tulloch also recommended an overhaul of the training that was put in place when the new rules took effect. He said it lacked the critical component of explaining why the changes were being made, which left some officers hesitant to get on board.

« Implementing new rules for police officers to follow has little value — and will not achieve the intended goal — if officers are not effectively and adequately trained on the reasons why the changes were necessary, » Tulloch wrote.

He also recommended officers at all levels « should learn how the widespread use of carding by some services and some officers has been abused in the past. »

Correctional Services Minister Sylvia Jones said the government is taking time to go through Tulloch’s findings, but said his work would « inform » efforts to reform police legislation in the province.

« We are committed to developing legislation that works for our police and for the people of Ontario, » Jones said in a statement. « Our new police legislation will reflect a simple principle: racism and discrimination have no place in policing. »

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Police carding should be banned in Ontario, independent review says

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Random street checks, or carding, should be banned as there is little evidence to show the practice is useful in reducing crime while it disproportionately affects racialized individuals, according to the results of an independent review released Monday.

The report was prepared by Court of Appeal Justice Michael Tulloch, who was tapped by the previous Liberal provincial government in 2017 to conduct a review of its new regulation on carding — the stopping and documenting of citizens not suspected of a crime.

“There is little to no evidence that a random, unfocused collection of identifying information has benefits that outweigh the social cost of the practice,” Court of Appeal Justice Michael Tulloch, seen here in an April 6, 2017 file photo, said in a report released Monday.
“There is little to no evidence that a random, unfocused collection of identifying information has benefits that outweigh the social cost of the practice,” Court of Appeal Justice Michael Tulloch, seen here in an April 6, 2017 file photo, said in a report released Monday.  (Rene Johnston/Toronto Star)

The regulation was aimed at prohibiting arbitrary stops — which Tulloch recommends should be explicitly stated in the regulation — and outlined the scenarios in which officers could stop an individual and request their information. The regulation also included new rules to govern those interactions, including a requirement that the officer tell the person they don’t have to provide identifying information.

Aside from reviewing the regulation, Tulloch also focused on whether purely random stops — traditionally known as carding — to gather information should ever be allowed. He found that it should not, while also noting that some critics have blamed recent spikes in gun violence on the new regulation and the restrictions placed on carding — a claim he said was not supported by the facts.

Many other jurisdictions, Tulloch said, have not reported an increase in criminal activity following a drop in carding practices. “There is little to no evidence that a random, unfocused collection of identifying information has benefits that outweigh the social cost of the practice,” he said.

“The data indicates that the better use of police resources is a more focused approach,” Tulloch wrote in his report.

“A widespread program of random street checks involves considerable time and effort for a police service, with little to no verifiable results on the level of crime or even arrests,” he said.

“Given the social cost involved with a practice that has not definitively been shown to widely reduce or solve crime, it is recommended that the practice of randomly stopping individuals to gather their identifying information for the creation of a databasae for intelligence purposes be discontinued in those remaining jurisdictions that still employ the practice.”

The review followed a number of public consultations across the province. Sylvia Jones, the minister of community safety and correctional services, said in a statement the government will review Tulloch’s recommendations.

“Our government has been very clear: we will fix the police legislation the Liberals broke. We are committed to developing legislation that works for our police and for the people of Ontario. Our new police legislation will reflect a simple principle: racism and discrimination have no place in policing. Justice Tulloch’s report will inform our work as we fix Ontario’s policing legislation,” she said.

“Public safety is, and always will be, a top priority for this government. You can count on us to keep our communities safe, stand up for victims, and hold criminals accountable for their actions. We will not let you down.”

With files from Wendy Gillis

Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant

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