Star’s view: There must be a balance between effective policing and protecting rights

In 2016, when Ontario’s former Liberal government released new regulations governing carding — the practice where police stop individuals, collect information and enter it into a database — they came under attack by civil liberties groups and police representatives alike.

Now an independent review of the regulations has found both sides had cause for concern.

Indeed, this week’s report from Justice Michael Tulloch finds that complex wording in the regulations — coupled with insufficient police training on interpreting them — has allowed two troubling scenarios to occur:

On one hand, some police forces have continued conducting random street checks that unfairly infringe on individuals’ rights. On the other, some forces have been so confused or afraid of misapplying the rules that they’ve backed away from talking to potential witnesses, to the detriment of legitimate investigations.

Happily, Tulloch’s 310-page report provides detailed recommendations on how to get a better balance between rights and effective policing. Unhappily, though, his report itself is so complex that it may leave the Ford government, never mind the public and police, wondering what exactly officers should be permitted to do when they interact with the public.

One thing, though, is clear. Tulloch found there is “little to no evidence that a random, unfocused collection of identifying information has benefits that outweigh the social cost of the practice.”

The social cost he refers to is how this type of random carding disproportionately affects racialized people to the point where Blacks could be stopped simply for walking in predominantly white neighbourhoods.

Nor should carding be used simply to build a database for general intelligence purposes. In fact, Tulloch recommends that carding information be destroyed five years after it is collected, unless it is being used for a specific purpose, such as a court case. What isn’t so clear is what should be allowed. Tulloch makes literally dozens of recommendations for changes in Regulation 58/16, the changes to carding regulations introduced by the Liberal government in 2016.

He recommends the rules be clarified to state expressly that curbs on carding should not prevent police from community building or investigating an offence.

At the same time, he recommends that regulations be changed to make clear the circumstances in which police may legitimately interact with people, how they should treat them, and what type of information they should provide in return. The idea is to avoid random stops that may be infected with bias, but to allow legitimate questioning.

It’s a valiant attempt, but the issue has become so fraught that the wording of his report may well be fought over by police and civil liberties groups as much as the Liberals’ earlier carding regulations were.

After all, they were explicitly aimed at barring police from initiating a contact with individuals based solely on race, while allowing police to conduct justified investigations.

Now that Tulloch’s review is in, the Ford government has a tough task ahead. So far the signals from Sylvia Jones, the minister of community safety and correctional services, seem positive. While saying public safety is a top priority for the government, she added: “Our new police legislation will reflect a simple principle: racism and discrimination have no place in policing.”

That sounds good on the face of it. But there is reason for concern.

Last July the PC government demonstrated it was only too happy to ignore Tulloch’s advice when it postponed implementation of the Ontario Special Investigations Unit Act, which was based on a sweeping police oversight review that he had also conducted.

This time the government must take Tulloch’s recommendations into account. It won’t be easy to find the right balance but at the end of the day one thing must be clear: random carding must be out — for good.