Canadian Civil Liberties Association Submission to Ministry of Community Safety and Correctional Service

Transcription

1 Sukanya Pillay, Executive Director and General Counsel Noa Mendelsohn Aviv, Director, Equality Program 31 August 2015 Canadian Civil Liberties Association Submission to Ministry of Community Safety and Correctional Service Re: Ontario Proposed Regulation for Street Checks Consultation Discussion Document The Ministry of Community Safety and Correctional Services (MCSCS) has asked for community responses on a number of issues, including: (I) (II) (III) (IV) (V) Defining street checks Standards for police interactions with the public Training Oversight Management of Information Collected The responses of the Canadian Civil Liberties Association (CCLA) to these questions, as well as our general concerns, are provided below. Introduction From Ferguson to New York to Chicago, the shooting and deaths of black men by police in recent years has resulted in major public outcries across the United States, and put the issue of racial profiling and policing centre stage. Although we in Canada may pride ourselves on our gun controls and correspondingly lower rates of violence, we cannot afford to be smug. 1

2 In Canada, racial profiling also exists and directly and negatively impacts the lives of individuals across the nation. Racial profiling not only unjustly violates the right to be equal before and under the law and other rights guaranteed by the Canadian Charter of Rights and Freedoms, racial profiling also undermines trust between communities and police. And such trust is vital if effective policing is to thrive in a democratic nation like Canada. The Supreme Court of Canada has recognized the critical need for this trust, stating: Police officers are entrusted by the communities they serve with significant legal authority, including, in some circumstances, the power to use deadly force against their fellow citizens. The indispensible foundation for such authority is the community s steadfast trust in the police. 1 One contentious and prevalent manifestation of racial profiling in Canada is the practice of interactions between the police and racialized individuals which occur on a disproportionate basis. These interactions frequently include an individual being stopped and/or questioned, their personal information elicited, and possibly recorded in police records. Such interactions are referred to as carding and street checks. Indeed the MCSCS has proposed to define street checks. As CCLA will explain below, we object to the phrase street check which suggests a normalized, routine and/or benign practice, rather than the potentially unconstitutional, unauthorized, discriminatory, and unlawful practice that persists when police randomly stop, question, and/or record the information of innocent and racialized individuals. Discriminatory, Unconstitutional, and Unlawful An arbitrary police stop will often constitute an unjustified interference with one s fundamental rights and freedoms, including the right to be free from arbitrary detention, and the right to liberty, privacy, dignity, and equality. When a person is constrained, physically or psychologically, this impacts their ability to go about their business. Even a brief stop may cause an individual to lose valuable time in getting to work on time, catching their bus, or meeting a curfew. The eliciting and recording of personal information interferes with an individual s right to privacy. Any person stopped and questioned by police for no reason will likely experience the sting of indignity and humiliation, in particular if the stop takes place in the presence of neighbours or other acquaintances. And given the fact that police stops disproportionately target racialized people, 2 the impact of these stops is discriminatory, violating individuals fundamental right to equality. This indignity and violation was recognized by the Ontario Court of Appeal in Peart v Peel, which stated: 1 Wood v Schaeffer SCC 2015 SCC 71, at para See, for example, Jim Rankin and Patty Winsa Carding drops but proportion of blacks stopped by Toronto police rises The Toronto Star (26 July 2014), online: o_police_rises.html 2

3 Regardless of the connection, if any, between racial profiling and racial bias, racial profiling cannot be tolerated. It is offensive to fundamental concepts of equality and the human dignity of those who are subject to negative stereotyping. It fuels negative and destructive racial stereotyping of those who are subjected to profiling. Racial profiling will also ultimately undermine effective policing both by misdirecting valuable and limited resources and by alienating law-abiding members of the community who are members of the targeted race. 3 Such violations cannot be justified in a free and democratic society. Unauthorized While the practice of police stops is common throughout many jurisdictions in Canada, it is not a practice that is lawfully prescribed that is, there is no law authorizing or justifying this practice, nor is there such a positive duty or right of the police. On the contrary, police stopping individuals, questioning them, eliciting and recording their personal information (any part of which will be referred to as a police stop ) runs afoul not only of constitutionally protected legal rights (as above), but also provincial human rights laws. Further, the implication that police are merely asking questions like ordinary civilians may do, and recording answers voluntarily provided by the individual who has chosen to remain in the encounter despite being free to go 4 are simply fictions. The reality of these interactions reveals serious concerns. Police do not necessarily inform individuals that their participation is voluntary, and even if they were to do so, this by no means creates or guarantee voluntariness on the part of the individual who has been stopped. There is an inherent power imbalance that arises when police interrogate individuals that is, law enforcement powers including carrying weapons and powers of arrest and detention which can and do intimidate individuals stopped and questioned by police. Individuals may not know their rights or may be understandably reluctant to assert their rights. It is fair to opine that not many people would choose to be interrogated and documented in police databases in the absence of a valid policing purpose. Youth can be rendered particularly vulnerable, and moreso in racialized communities where, as a result of the long history of racial profiling, there is arguably a crisis of distrust with police. 5 Even courts have recognized that police stops may not be voluntary, but rather the result of psychological constraint, for example out of fear of the exercise of physical force or 3 Peart v. Peel (Regional Municipality) Police Services Board, 2006 CarswellOnt 6912, at para See, for example, Toronto Police Service, The Police and Community Engagement Review (The PACER Report): Phase II Internal Report & Recommendations, at p Crisis of Distrust is the name of the documentary film created on this issue by the Toronto Policing Literacy Initiative. 3

4 prosecution. 6 Not only are police stops often unwelcome and not voluntary, they can be a frightening and intimidating experience, even where the police approach is calm and respectful. Further, there is no oversight or review of the practice or prevalence of street checks. Accountability further fails in that police do not necessarily provide carbon copies or printouts of data recorded during such interactions ( carbon copies ), which would include identifying information of the police officer s identity as well as the relevant circumstances pertaining to the police stop. Failure to provide such carbon copies further renders stopped and interrogated individuals powerless in that any potential recourse can be obstructed. In the result, where racial profiling practices exist, society should seek the elimination of this practice, not its enactment into law. In Ontario, it would be a constitutional failure and a civil liberties failure if rather than rejecting racial profiling as an unlawful and unconstitutional practice, the province created regulations which would perpetuate these practices. Requested Definition of Street Checks The CCLA rejects the phrase street checks and accordingly cannot provide or consent to a definition of this term. 7 There is no lawful basis in which to ground the practice of a random street check. Individuals have the right to be in public spaces without needing to justify themselves and without having their rights violated. The Charter protects individual s rights to privacy and to be free from unreasonable search and seizure as such, random police searching, documenting, or otherwise tracking individuals locations and activities is unlawful absent a legitimate purpose. 8 CCLA recommends that the term street check be avoided, and recommends instead the term police stops to describe police-community encounters that fall short of detention or arrest. Definition of a Police Stop The consultation document considers a definition for street checks that involves a police officer requesting information and recording it in a police database. This definition is not sufficient to account for the range of police-community interactions that need to be addressed and monitored for compliance with individual rights or for racial profiling. Even a police stop that yields no information may still be still invasive to the subject of the stop. 9 6 R v Grant 2009 SCC 32, at para CCLA employs, instead, the term police stops as defined below. 8 General fishing expeditions for data in the hopes of finding a useful morsel are not permitted. The Supreme Court of Canada has wisely ruled against ex post facto justifications of otherwise unlawful searches. R v Feeney [1997] 2SCR 13, at para. 45. Nor do they make for good policing. 9 For example, a young person on his way home, was addressed by an officer who instructed him to approach. The young man did not feel safe or comfortable disobeying this instruction, and did as he was told. Though the officer asked no personal questions, he scrutinized the young man closely. The youth, for his part, did not feel free to go. 4

5 CCLA recommends that a regulation aimed at stopping racial profiling should recognize that police stops include interactions in which one or more officers approach an individual and stand in his or her path; inquire as to the individual s name, address, identity, whereabouts, activities, and/or associates; and/or record information about the individual in police records including memobooks or any database. As stated, any one or more parts of this would constitute a police stop. And such stops should be prohibited, except for the strict purposes listed below. Whether data recorded by police is filed in a memobook or uploaded to a database, the interaction that resulted in the information still constitutes a police stop. Data in a memobook can be uploaded in the future, possibly without the knowledge of the individual. Likewise, there is no reason to exclude interactions in which police are investigating a specific offence or carrying out certain police duties, as contemplated by the consultation document. Police Stops are Presumptively Involuntary The consultation document refers to a definition of street checks as a voluntary interaction between a police officer and a member of the public where the police officer requests information about the person and the information is recorded in a database. As discussed, police stops cannot generally be described or justified as voluntary. Further, members of racialized communities reportedly feel enhanced vulnerabilities when stopped and questioned by police the opposite of voluntary engagement. When individuals cooperate with police and answer questions, they may be doing so not based on their free will, but because they are afraid to refuse. 10 This fear may be based on a negative experience (their own or another s) with police, or on poor police-community relations, and at base derives from the power and authority vested in police. In light of this, a regulation should recognize police stops as presumptively involuntary. CCLA Rejects the Consultation Document s Assertions on the Value and Purpose of Street Checks The consultation document provides that [s]treet checks are used by police to engage and record interactions with individuals whose activities and/or presence within their broader context (e.g., location, time, behaviour, etc.) seem out of the ordinary. 11 This is an arbitrary and overbroad statement. There is nothing unlawful about being out of the ordinary, and such a description cannot justify interference with individual rights. Moreover, As a young black man, he experienced not merely a few minutes interference with his freedom, and the frustration of missing a transit connection, but also the sting of indignity and discrimination for having been targeted and scrutinized, and the injustice of feeling compelled to follow the officer s directions, or else face the unknown consequences of failing to do so. This scenario is based on a true story conveyed to CCLA staff as part of our Youth Rights and Policing Project. 10 See, supra notes 6 and MCSCS, Ontario Proposed Regulation for Street Checks Consultation Document, at p. 2. 5

6 when police act on hunches and ideas of what is and is not ordinary, this leaves room for deepseated and systemic racism to play out, and the targets are frequently racialized and marginalized persons. Furthermore, individuals gather in public places at times and in places that are suitable and available to them in particular if they are young and/or homeless and/or marginalized and do not have their own living rooms or basements or in summer, air conditioned facilities. There is a host of scenarios including for example, cultural, seasonal, or even mental health factors that can affect an individual s behaviour or draw attention to an individual without having any connection whatsoever to unlawful activity. The act of being in a public space does not in and of itself justify interference with the constitutionally protected rights and freedoms of individuals. No Evidence to Justify Police Stops In light of the presumptively involuntary nature of police stops, the power imbalance discussed above, and the fact that police stops frequently violate individuals fundamental and constitutional rights, any stop would need to be justified by police in a clear and cogent manner. To date, no such justification has been forthcoming. The consultation document provides, as part of its terms, that [s]treet checks, done properly, are a necessary and valuable tool for police to help communities remain safe and secure. A mere assertion that street checks help police secure public safety absent clear and cogent evidence of any kind is, we respectfully submit, of no benefit. The document provides no useful clarification on the purported value of police stops, and no evidence demonstrating its necessity, its value, or even proportionality. Given that the public debate about racial profiling and street checks has been ongoing for decades, and no such evidence has been provided, this calls into question what evidence or justifications exist. In the result, in our view, police should not initiate a stop; approach or question an individual; elicit and/or record personal information from individuals except for the purpose of and with lawful grounds for - investigative detention; for the purpose of preventing a specific offence from occurring; and/or to prevent imminent or apparent harm to the subject of the stop. CCLA also refers the Minister to section 4(b) of the Toronto Police Services Board (TPSB) Community Contacts Policy for a list of specific reasons that do not justify a police stop Toronto Police Services Board Community Contacts Policy (24 April, 2014), s. 4(b). These include: i. Gathering personal information for use in unspecified future investigation; ii. Investigating an unsupported suspicion; iii. Prolonging an interaction in the hope of acquiring the reasonable suspicion necessary to detain; iv. Meeting a quota or performance target; and v. Raising awareness of police presence in the community. 6

7 Training All officers (including new recruits, current officers, and supervisors) should receive training on the Charter, the Ontario Human Rights Code, their application to police stops, and on any new regulation(s). Such training must recognize deeply embedded police culture and practice or it will fail to displace the culture that enabled the prevalent practices of police stops. Further, in the event of a valid stop as described above, police must be trained to immediately inform the individual when their participation is voluntary, that they are free to go and in any event that they are not required to answer any question or provide personal information. Officers should also be trained to provide carbon copy receipts to individuals, as discussed below. However training will not be helpful to address racial profiling without clear rules and guidelines, discipline, accountability and oversight tools, as proposed in this submission. Data Collection Police Database; Database to Monitor Racial Profiling Any data recorded in police records should comply with fundamental privacy principles including those relating to necessity, use (and secondary uses), storage and retention, dissemination, access, and destruction. Recorded data that complies with the principle of necessity and is stored, must include the specific purpose of the police stop, referring to one of the purposes listed above, and how this purpose is applicable on the facts of that stop. Police officers should not collect or retain information in their memobooks, in police databases or otherwise unless such collection or retention is legitimate, necessary and proportional, in relation to the specific purpose for which it was collected. A supervisor should review any materials in police records before it is uploaded to a police database, in light of the above criteria. Once reviewed and stored, information in the database should be subject to strict protocols that place firm and appropriate limits on access and dissemination or sharing; prevent secondary uses unrelated to the specific purpose for which information was collected; and specify clear limits on retention. CCLA objects to the indeterminate storage and retention of personal information procured from police stops; the presumption should be towards storing personal information as briefly as possible, with clear written reasons required for continued storage. Individuals should be informed of their right to request a copy of the information held about them, and be provided with sufficient information at the time of the police stop to enable them to make an effective request for their personal information. Data should not be retained if not being used for a specific investigation. Invading individuals liberty and privacy for a general information sweep is impermissible. So too is the retention of data in such circumstances. A detailed data collection, access, retention, and destruction policy should be created with the Information and Privacy Commissioner of Ontario. CCLA will be glad to comment on any policy/regulation developed. 7

8 Accountability Specific Data Retention In addition to any data collected for police records, CCLA recognizes the importance of recording data about racial profiling for the purpose of monitoring police conduct and the state of racial profiling in police services in the province. As such, in the event of a police stop, police should record, in a non-police database, information as to the purpose of the stop (referring to the purposes above), the applicability of the purpose on the facts of the stop, and the racial appearance of the individual who is the subject of the stop. Any further information collected about the individual that may be of use in assessing police conduct and in monitoring for racial profiling should also be inputted into this database. This database should be available to the Monitor discussed below. Communication and Carbon Copy In the event that a police stop does not amount to investigative detention, detention or arrest, the interaction should not and cannot take place if it is not voluntary. If it is determined that such a stop is permitted, the onus is on police officers to communicate to the individual that they are not required to participate in the encounter, to answer any questions or provide any personal information, and that they are free to go. This should take place at the beginning of the interaction. At the conclusion of the interaction, police should issue to individuals a carbon copy or printout of any information that is recorded about them in the police database and in the database monitoring racial profiling, subject to public safety purposes. Accountability: Oversight and Review Reporting and Monitor Police services should be required to report periodically about police stops to an arms-length, independent Monitor appointed for the purpose of assessing and addressing racial profiling and police stops (as discussed below). Reports should include all data collected in police databases, including data about racial appearance. Reports should be made publicly available, and as such should exclude information that can identify individuals, but should include means for meaningful analysis of the information. Reports should include demographic information collected about individuals including racial appearance, age, socioeconomic status, sex; the specific purpose of the stop from the purposes listed above, and how this applies on the facts of the stop; any applicable complaint; whether a carbon copy was issued; outcome of the stop; and outcome of the complaint (if any). Overseeing and/or Enforcing Compliance with the Regulation Police services and police services boards should be held responsible for complying with the regulation. Officers should be disciplined and/or otherwise held accountable for initiating an 8

9 improper police stop, for disrespectful conduct, and/or for violating individuals rights. Supervisors should be responsible for monitoring their officers and ensuring compliance with the regulation, or seeking remedial and/or disciplinary action. Other accountability measures have also been recommended by experts, including tying unit, division and service budgets to compliance with the regulation and racial profiling. An independent, arms-length Monitor should be responsible to audit and oversee compliance. This Monitor should have full access to police databases and the database to monitor police conduct and racial profiling, the authority to interview officers and supervisors, and the budget to engage in meaningful periodic investigation of different services. The Monitor should conduct periodic regular reviews of police services in Ontario, and should have the authority to receive complaints about racial profiling and police stops, and to initiate reviews. Community surveys should be done periodically in different divisions or areas, in particular where there is a high volume of police stops. Community-based research should assess police conduct, community-police trust and relations, and compliance with the regulation. 9