4 December 2015 Hon Yasir Naqvi, MPP Minister of Community Safety and Correctional Services Via email: ynaqvi.mpp@liberal.ola.org RE: No End to Carding and Insufficient Protections: Proposed Regulation O. 268/10 Collection of Identifying Information in Certain Circumstances - Prohibition and Duties Dear Minister Naqvi, We are writing with our concerns regarding proposed regulation O. 268/10 Collection of Identifying Information in Certain Circumstances - Prohibition and Duties (the Regulation). While we recognize that the Regulation does create some helpful rights protections and accountability measures, we are deeply concerned that under the Regulation, carding and arbitrary police stops can continue, and unnecessary personal information can be collected and retained indefinitely. In short, your declared goals to prohibit the random and arbitrary collection of identifying information by police, referred to as carding or street checks, to protect civil liberties and strengthen accountability and public confidence cannot properly succeed without significant amendments. In order to protect individuals rights to equality, liberty, and privacy, we urge you to make the necessary amendments to the Regulation. Our concerns with the Regulation and recommendations for amendments are set out briefly below. For full detail of our concerns and recommendations, we refer you to the Joint Position. This Joint Position, co- authored by CCLA, expresses the views of several key stakeholder organizations and individuals who came together around this issue. The Joint Position was provided to you recently, and we appreciate your taking the time to read it and to meet with us and other signatories last week. We attach another copy to this submission for your convenience, together with CCLA s submission, dated 1
31 August 2015, entitled Canadian Civil Liberties Association Submission to Ministry of Community Safety and Correctional Service Re: Ontario Proposed Regulation for Street Checks Consultation Discussion Document. The Canadian Civil Liberties Association (CCLA) The Canadian Civil Liberties Association (CCLA) CCLA is a national, non- partisan, non- profit, non- governmental organization that has worked to protect and promote fundamental human rights and civil liberties in Canada for over fifty years. We carry out our work through advocacy, litigation, public engagement, and public education. Fundamental Rights Violations The proposed Regulation will not stop carding (also known as street checks 1 ) which frequently involves arbitrary detention by police; discrimination against African Canadian, Aboriginal, and other racialized and marginalized individuals; and the collection and retention of personal information with no lawful purpose. These practices violate individual rights to liberty, equality, privacy, and the right to be free from arbitrary detention. The Regulation should be amended to uphold these rights, as required under the Canadian Charter of Rights and Freedom (the Charter) and the Ontario Human Rights Code (the Code). Regulation Excludes Many Police- Community Interactions The Regulation does not apply to many forms of police- community interactions, even though carding and racial profiling take place within many different kinds of policing activities. Where the Regulation does not apply, its rules, rights protections, and accountability mechanisms do not apply either, including: rules about when not to stop individuals, the right to be told that one is free to walk away, the right to a written document about the interaction, and certain protections of one s personal information. In addition, where the Regulation does not apply, its accountability and oversight mechanisms will not monitor those police- community interactions to ensure that the interaction was legitimate. As such, many forms of carding may now slip under the radar. For example, the proposed Regulation excludes from its scope any specific criminal investigation, and as such would not prohibit the current practice of some anti- violence teams, of responding to an incident by sweeping into a neighbourhood and interrogating many young (and in particular young black) men in the neighbourhood. Nor would the Regulation necessarily help, for example, youth on their way home from school if approached by officers for the purpose of preserving the peace, in a casual interaction, or for no reason at all (which is the essence of arbitrariness). In these situations, the Regulation s rights protections and accountability frameworks simply would not apply. 1 CCLA objects 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 exists when police randomly stop, question, and/or record the information of innocent and racialized individuals. 2
We urge you to amend the Regulation and make it applicable to police- community interactions (subject to specific exceptions as detailed in the Joint Position). Officers discretion should be guided, and accountability should be available to ensure that interactions are legitimate and lawful. Regulation Should Permit Lawful, Constitutional Policing Activities; Prohibit Carding Direction in the Draft Regulation to restrict racial profiling and arbitrary police stops and collection of personal information, may help prevent some carding, but is overly broad and permissive: Race: The Regulation does not sufficiently restrict how race is used in suspect description. As such, under the draft Regulation, it could still be possible, in some circumstances, for individuals to be stopped simply because they are young black men. Belief that it is relevant: The Regulation would, with some exceptions, permit carding simply because an officer believes that identifying an individual may be relevant to a criminal investigation or to investigating suspicious activities. This is a loose standard that could give officers the impression that they are permitted to card in a great many circumstances. This direction falls short of the reasonable suspicion constitutional standard established by the courts to guide officers discretion. Disproportionate Impact: Where carding is not prohibited, experience shows that it may well persist, and if so, will likely continue to have a disproportionate impact on African Canadians and other racialized and marginalized communities. Suspicious activities: Based on existing data, the phrase suspicious activities appears to lend itself to the carding of African Canadians and other racialized persons, as well as individuals whose behaviour may be out of the ordinary due to mental illness, cognitive impairment, poverty, and homelessness. CCLA recommends: amend the Regulation to ensure that a police officer s approach to obtain personal information must be conducted for lawful, legitimate, non- discriminatory purposes, based on the Constitutional standard of reasonable suspicion, and as set out in comprehensive detail in the Joint Position. Enhance the Rights Notification For a police- community interaction to be constitutionally valid, it must either be a lawful coercive interaction, such as an arrest or detention, or a voluntary interaction in which the individual participates of their free will. The Regulation requires that police inform individuals that they are not required to remain in the interaction. The Regulation does not however specify, as it should, that for this information to be useful, police must provide it at the very start of the approach. In addition, the Regulation should require officers to inform individuals of their right to remain silent, with additional rights provisions for minors. 3
Enhance Document Regime for Rights Notification and Accountability While the Regulation helpfully requires that individuals be issued a document following an interaction, this requirement is accompanied by a broad exemption. A document that details the interaction and explains one s rights and avenues for recourse could serve as a valuable tool for empowering both police officers and their supervisors, as well as individuals, communities and rights bodies. CCLA recommends replacing the broad general exemption with a few specific and narrow exceptions to help guide officer discretion. CCLA also recommends enhancing the requirements concerning the document as spelled out in the Joint Position. Data Recording and Retention The Draft Regulation provides few privacy protections with respect to the retention and use of data collected through police- community interactions. Indeed, the Regulation explicitly provides for the indefinite retention of individuals personal information in police records, even if it was collected without a legitimate reason. This is a significant violation of individual privacy rights under s. 8 of the Charter. Collecting, recording and/or retaining data invades individuals privacy, dignity and liberty. As such, 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, accuracy and access, and destruction. Thus, for example, police officers should not collect or retain information in police records unless such collection or retention is legitimate, necessary and proportional, in relation to the legitimate purpose that justified its collection. Data that does not meet these criteria should be destroyed in as short a time as possible, and at most should be kept for no longer than a year to facilitate individual access to this information in the case of a complaint. These principles should be applied to both new and existing (historical) data in police databases. Enhance Training Requirements The Training required by the Regulation should be mandatory for all officers, including Chiefs of Police and the OPP Commissioner. Such training may help senior officers monitor the conduct of their officers, and help senior officers understand individual rights, including privacy with respect to data. While the Regulation includes a number of helpful training requirements, these should be spelled out in greater detail, with more stringent requirements, and should ensure that adequate training is provided in the areas of (a) racial profiling (including fundamental principles, rights and issues, information about systemic racism, and the disproportionate impact of carding on African Canadian and Aboriginal individuals and communities); (b) the Regulation itself; and (c) privacy rights. Training should include a requirement that officers demonstrate competence in the recommended areas. 4
Accountability Community and rights- based concerns about racial profiling and carding are long- standing, decades long, despite the Charter protected rights to equality, liberty, privacy, and the right to be free from arbitrary detention; and the anti- discrimination provisions in the Code. In the result, it is unlikely that a new regulation can prevent carding without robust accountability and oversight mechanisms. These should include: (a) a duty to report on police- community interactions in a manner that is probative of racial profiling; (b) a non- police database for the purpose of monitoring police conduct, established with a view to identifying and addressing carding and racial profiling; (c) appropriate supervision within the service; (d) a mechanism for holding police service boards and Chiefs accountable; (e) independent audits of compliance with the Regulation, including compliance with an appropriate data retention and destruction policy; and (f) an independent Monitor responsible for overseeing compliance with this Regulation. Conclusion The draft regulation in its current format is insufficient to end carding and arbitrary police stops. In order to achieve this important goal, the regulation must be amended to enhance its scope, rights and accountability frameworks, and privacy protections. This is necessary to protect the equality, liberty and privacy rights of people in Ontario. Sincerely, Sukanya Pillay Executive Director and General Counsel Canadian Civil Liberties Association Noa Mendelsohn Aviv Director, Equality Program Canadian Civil Liberties Association 5