Carding in Toronto: It isn’t random and it is fundamentally illegal

In a June 18^th article in the Globe and Mail Mayor John Tory defined the practice of carding Thursday as ‘the arbitrary stopping of people for reasons unrelated to any criminal or lawful investigation, and recording information from those people and storage of that information in a database of innocent people over a long-term basis.’ Using that definition, he said, ‘I believe today will represent a definitive end to carding.’”

On June 7^th Former Mayor Rob Ford was the solitary vote against an anti-carding petition with over 7000 signatures. Ford stated, “I’ve always supported carding,” said Ford in a previous appearance at council. “If people don’t have anything to hide, no matter the colour of their skin, then show your ID.”

In my view, Rob Ford and those that agree with him are wrong and misguided on two fronts: 1) there should be no obligation to give any information to the police in a free and democratic society and 2) the colour of a person’s skin is a critical factor in the analysis and anyone that says otherwise is lying to themselves or to others.

The Canadian Charter of Rights and Freedoms protects against unlawful detention, arrest and search. However, much more important in the analysis of carding is Section 15 of the Charter, which guarantees equality. Section 15 of the Charter reads as follows:

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In practice, the issue of carding is very much an issue about race because it is usually deployed against people that live in low-income and racialized areas.

In particular, it is black Canadians that bear the brunt of this practice and the feelings of powerlessness, frustration, degradation and despair that go along with it. For an example of the damage that this practice can cause to a person’s life and psyche, Desmond Cole, a journalist in Toronto, wrote a powerful article in Toronto Life Magazine, which should give anyone a dose of reality when arguing that race is not a factor when it comes to “random” police stops. Mr. Cole has been stopped over fifty times by the police:

After years of being stopped by police, I’ve started to internalize their scrutiny. I’ve doubted myself, wondered if I’ve actually done something to provoke them. Once you’re accused enough times, you begin to assume your own guilt, to stand in for your oppressor. It’s exhausting to have to justify your freedoms in a supposedly free society. I don’t talk about race for attention or personal gain. I would much rather write about sports or theatre or music than carding and incarceration. But I talk about race to survive. If I diminish the role my skin colour plays in my life, and in the lives of all racialized people, I can’t change anything.

As I often argue with those that state blithely, and when it has no impact on them, that the police should have more powers, it is not the role of the police to create crime – it is the role of the police to investigate and arrest those that they have reasonable grounds to believe have committed crime. That is the price of living in a free and democratic society. But the reality is very different for people living in low-income communities, particularly racialized persons and particularly black Canadians who are the most likely to be targeted.

The practical impact of these programs, in my view, makes the practice of carding and random stops fundamentally illegal and contrary to Section 15 of the Charter.

The late Christopher Hitchens wrote about an experience he had had with the police and concluded with a rhetorical question about race that I submit those that approve of carding should consider:

More recently, I was walking at night in the wooded California suburb where I spend the summer, trying to think about an essay I was writing. Suddenly, a police cruiser was growling quietly next to me and shining a light. “What are you doing?” I don’t know quite what it was—I’d been bored and delayed that week at airport security—but I abruptly decided that I was in no mood, so I responded, “Who wants to know?” and continued walking. “Where do you live?” said the voice. “None of your business,” said I. “What’s under your jacket?” “What’s your probable cause for asking?” I was now almost intoxicated by my mere possession of constitutional rights. There was a pause, and then the cop asked almost pleadingly how he was to know if I was an intruder or burglar, or not. “You can’t know that,” I said. “It’s for me to know and for you to find out. I hope you can come up with probable cause.” The car gurgled alongside me for a bit and then pulled away. No doubt the driver then ran some sort of check, but he didn’t come back. 

In the first instance, I found again what everyone knows, which is that there are a lot of warped misfits and inadequates who are somehow allowed to join the police force. In the second instance, I found that a good cop even at dead of night can and will use his judgment, even if the “suspect” is being a slight pain in the ass. But seriously, do you think I could have pulled the second act, or would even have tried it, or been given the chance to try it, if I had been black?

 If you agree that the question above is rhetorical then I submit that you should also agree that carding and random stopping is bound to be deployed differently against different sectors of society and therefore fundamentally illegal and contrary to the equality provision of the Charter. Whatever I say about carding and the right not to cooperate with the police is irrelevant to the practical question faced by those that are “randomly” stopped by the police multiple times. And it is of very little solace to such a person stopped to have any subsequent criminal charges stayed or withdrawn because of a violation of their rights. Much more to the point, the practice should be stopped to comply with the constitution. In a free society, the police will have to content themselves with investigating crime, rather than creating it.

UPDATE: I was recently interviewed by the CBC on the topic of  your rights when you are pulled over by the Police,  take a look at the CBC article.