Anti-carding law means well, but is misunderstood

It is hard to imagine that such a well-intentioned piece of legislation — changes to the Police Services Act to rid Ontario of the loathsome practice of randomly stopping and “carding” innocent people, particularly those of colour and Indigenous heritage — should have been implemented and understood so very badly by everyone.

But there you have it — it was. This is Ontario Regulation 58/16, as it is properly known, brought in in 2016 by the former Kathleen Wynne Liberal government and fully effective Jan. 1, 2017.

And what it did, says Ontario Appeal Court Judge Michael Tulloch who was the regulation’s “independent reviewer,” was sow “mass confusion” among the public and the police expected to follow it.

Tulloch’s 300-plus page report, about which he will publicly speak Friday, is the first I have ever read that clearly explains the difference between “street checks” (a broad category of information gathering, much of which Tulloch says is legitimate) and “carding” (a small subset of street checks where police randomly stop an individual, ask for identifying information and then keep it in a police database).

The former is properly done when police have an “articulable” basis for it — in other words, when they have a reason to suspect the person is involved in a crime, a reason they can put words to and spell out.

The latter is never acceptable, because if the police don’t have a reason for asking someone to produce ID, they are making a random or arbitrary stop.

Where the language of the regulation itself is tortuous and opaque, Tulloch’s report is written in plain English, its meanings clear.

For instance, he says, if police spot a man in a deserted alley in the middle of the night, they can’t just stop and question him because they have a “spidey sense” that he’s up to no good (especially if the spidey sense has been triggered by the fact he’s black and wearing a hoodie). That’s carding.

If, however, the same man is carrying a crowbar, police have an articulable reason — in fact, a duty — to inquire. People don’t usually walk down an alley in the dark of night so equipped.

If the man is carrying a crowbar and behind him is a car with a broken window and there’s broken glass on the ground, police have reasonable and probable grounds to believe an offence has been committed.

And if they see him with the crowbar, breaking the window, the regulation simply doesn’t apply, and they can stop him, ask for identification and arrest him.

The history of carding mirrors the much-shorter history of the regulation, in that it began with an honourable goal and limits, and turned into a bit of a monster.

In Toronto for instance, the practice began in 1957 when police services were amalgamated and street checks were aimed at finding information on persons of interest to help detectives.

Officers used “suspect cards,” later called “R41 cards,” on persons of interest and forwarded the cards to detectives. Later still, when Toronto started the Toronto Anti-Violence Intervention Strategy (TAVIS), they were called “208 cards”; the practice widely grew.

And the reason arbitrary stops resonate so painfully with black and Indigenous communities is that they have a shared global history of needing a pass to travel — with the former, the slave-ownerissued pass that allowed slaves to move about for a fixed time; with the latter, a pass to go off the reservation.

In both cases, the pass had to be produced on request by the authorities.

Over time, the legitimate practice of investigative street checks expanded, police got more discretion (which some began to use with little discretion) and the grounds to stop people came to include those who weren’t acting suspiciously. So-called suspicious activities came to include such inherently contradictory things as failure to make eye contact with an officer and staring at him.

Eventually, street checks became a measure of officer performance, and officers “were incentivized to engage in poor practices.

“The degree to which the practice devolved became, at times, quite ridiculous,” Tulloch says. “In order to meet the required quotas, the bar for suspicious behaviour was lowered and then dropped entirely.

“I was informed by police stakeholders that some police officers recorded the names and birth dates obtained from tombstones to submit as street checks.

“Groups of young people on their way to school were stopped and asked for their identifying information, sometimes with only the racialized members of the group being questioned. Young men simply playing basketball were stopped and collectively asked to provide their identifying information.”

What the regulation was intended to do — stop carding and clarify the rules around street checks — it in the main failed to do.

Tulloch says the regulation “is a confusing and somewhat convoluted document” and that “this confusion has resulted in many officers being reluctant” even to engage the public in conversation for fear of inadvertently breaching the rules.

But the police want to do better, Tulloch says, noting that “When a police service defends the continued use of street checks, many members of the public believe that (they are) defending the continued practice of carding. That is not the case.”

But there’s been so much misinformation it’s been hard to have a smart discussion. Now it won’t be, and for this, Tulloch and his small but mighty team deserve big love — and attention from the new government.

(POLICE) WERE INCENTIVIZED TO ENGAGE IN POOR PRACTICES.