You are on page 1of 10

CANADIAN MUSLIM LAWYERS ASSOCIATION

SUBMISSION TO THE ONTARIO MINISTRY OF COMMUNITY SAFETY AND


CORRECTIONAL SERVICES
RE: CONSULTATION ON PROPOSED REGULATION ON STREET CHECKS

SEPTEMBER 21, 2015

About the Canadian Muslim Lawyers Association


The Canadian Muslim Lawyers Association (CMLA) was founded in 1998 by a small group of
Toronto-based Canadian Muslim lawyers. It has over 300 members across Canada with active
chapters in Ontario and Quebec.
The CMLA is focused on four key areas of engagement. First, the CMLA serves as an advocate on
select issues of importance to Canadian Muslim lawyers and the broader Canadian community. The
CMLA has appeared as a public interest intervenor before the Supreme Court of Canada. In addition,
the CMLA actively participates in the discourse on human rights and national security law and
policy. In this regard, the CMLA has made submissions to, and testified before, Parliamentary
committees examining national security, human rights and civil liberties on numerous occasions
since 2001.
Second, the CMLA helps build professional relationships among Canadian Muslim lawyers and
between Canadian Muslim lawyers and members of other legal organizations. Third, the CMLA
educates its members and the broader Canadian Muslim community on law topics of interest as an
access to justice initiative. Fourth, the CMLA provides peer support by providing law students and
junior lawyers with mentorship and professional development seminars.
More information on the CMLAs history, mandate, and current work can be found on our webpage
at: www.cmla-acam.ca.

1.

Our Focus:

The CMLA submission will provide methods to improve police accountability and oversight with
respect to the widespread misuse of street checks.1 This practical approach is in response to the
governments position that the practice of street checks will not be ended and the purpose of the
consultation is to create a regulation that sets out fair, bias-free, and consistent rules requiring that
police interactions with the public are justified, and that the information collected during these
interactions is tied to a valid policing purpose.2
To be clear, the CMLA agrees with several other respected legal and civil rights organizations,
former judges and community leaders that the practice of street checks (also known as carding) is
unconstitutional, offends the Ontario Human Rights Code and should be terminated.3
Moving ahead, the publics confidence in the governments ability to regulate the controversial
practice of street checks is contingent on establishing robust procedural and substantive safeguards
that identify abuses of the narrowly defined set of circumstances under which street checks will be
allowed by regulation and that hold police officers accountable in a transparent manner. In other
words, the government must be committed to legislating a better system of accountability for
officers that do not adhere to the new street check rules and guidelines.
Despite the governments best efforts to balance law enforcement with individual rights by
establishing stronger rules for street checks, there can be no doubt that even with a new regime
there will continue to be abuses by the police of this unusual discretionary power.

The Ministry of Community Safety and Correctional Services (MCSCS) Consultation Discussion Document
states 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. < http://www.mcscs.jus.gov.on.ca/english/PublicConsultations/mcscs_pc.aspx>
2 Ibid.
3 Groups and individuals calling for the end of carding include: Concerned Citizens to End Carding CBC
news. June 3, 2015. <http://www.cbc.ca/news/canada/toronto/concerned-citizens-to-end-carding-demandend-to-controversial-policing-tactic-1.3098291>; the African Canadian Legal Clinic; MPP Jagmeet Singh.
1

2.

Justification for a New Approach:


i) Restoring the Publics Confidence

Street checks have exacerbated the publics loss of confidence in policing especially in communities
most affected by their misuse. The police most often use street checks in socio-economically
depressed communities where crime is viewed to be higher. Within these communities live greater
numbers of racialized groups, new immigrants, and refugees fleeing conflicts or (ironically) civil
rights abuses.
ii) Recognizing Potential Abuses and Mass Data Collection
Muslims comprise a significant part of the communities most affected by street checks. Muslims
feel increasingly concerned that street checks will be used against them not only under the guise of
traditional criminal investigations but also for national security. Recent legislation passed by the
Government of Canada, such as Bill C-51,4 has only exacerbated that feeling.
Muslims such as many Somali Canadians are particularly vulnerable to street checks by virtue of
their race, their religion, socio-economic situation and where they live.5
The CMLA is particularly concerned with the impact of carding on racialized youth and the distrust
such practices cause. For example, several youth between the ages of 14 and 16 reported one
incident to a CMLA member in which they were detained by police officers while walking home
from a mosque. Some of the boys were wearing religious garb, known as a thobe, a common
practice in their Regent Park neighbourhood. The police officers questioned these youth, not only
about their identities and their activities but also about their choice of dress.

4See

the CMLAs Bill C-51 Submission to the House of Commons Standing Committee on Public Safety and
National Security http://www.scribd.com/doc/259734209/CMLA-Bill-C-51-Submission-Before-HOCStanding-Committee-on-Public-Safety-and-National-Security
5 See for example the Institute for Research on Public Policys I Am Canadian Challenging Stereotypes about
Young Somali Canadians. The author Rima Berns-McGown found that young Somali Canadians face
systematic, institutional racism on the part of schools, police and intelligence agencies, and the media.

Young persons that are repeatedly subjected to random street checks, which include demeaning
questions about ones culture, will lose confidence and trust in policing. While we should expect
youth to behave responsibly when interacting with police, we should equally expect police officers
to exercise the powers entrusted in them by the public in a dignified manner.
3.

Accountability and Oversight:

With the continuation of street checks in some form, public confidence in the administration of
policing will be further eroded unless the government implements measures to strengthen
transparency and police accountability. As Justice Morden noted in his G20 report, citing Sir Robert
Peel, [t]he ability of the police to perform their duties is dependent on public approval of police
existence, actions, behaviour and the ability of the police to secure and maintain public respect.6
Such confidence in the police will be more needed in the context of street checks.
First, the new street check rules or regulations should be subject to a sunset clause so that there is a
mandatory review in 2 years or before this government calls its next election, whichever comes
first. This will allow the government and the public to judge the success or failure of the new
regime, and to decide whether to amend, repeal or retain it.
Second, the government must improve the Office of the Independent Public Review Director
(OIPRD) and the police disciplinary tribunal process to address the oversight of street checks
including the violation of a victims rights.
The Police Services Act should be amended to strengthen the oversight provided by the OIPRD and
the procedural due process of discipline hearings. Judges and not police administration should be
assigned to conduct hearings related to carding misconduct allegations as the police are in an

Hon. John W. Morden, Independent Civilian Review Into Matters Relating To The G20 Summit pg. 81.

inherent conflict of interest.7 Data on complaints should be collected and disciplinary decisions
should be published so that both the government and the public remain informed. Further, in
keeping with the governments Open Government initiative, individuals should have access to their
data so that inaccurate and prejudicial information inputted by the police can be expunged and its
creators held accountable.
Specifically, we make the following recommendations:
A. The Police Services Act and the regulations enacted thereunder should be amended in
several areas to address the changing legal and social landscape.8

B. The Police Services Act or its regulations should require the OIPRD to monitor and publish
an annual report on the effectiveness of the street check amendments.

C. The OIPRD should report separately about the number and nature of complaints it receives
that directly or indirectly relate to street checks, including, as a separate category,
complaints relating to minors. The OIPRD should track the number of complaints made
about a particular officer, division and police service, and should periodically review and
investigate if a particular officer, division or police service has been repeatedly cited in
complaints.

This information should be published so that the public has access to the

number and nature of complaints made against officers.

D. The OIPRD should publish all decisions relating to the street checks that have been
screened-out by the OIPRD. Abbreviations of the complainants name such as the use of
There is precedent for this. For example Chief William Blair appointed retired Justice Walter Gonet to
preside over the G20 misconduct hearings. Outside counsel were appointed to act as prosecutors.
8 Police officers assigned to investigate police officers for serious misconduct also support strengthening the
Police Services Act: http://www.thestar.com/news/crime/2015/09/14/peel-officer-gets-5-year-prisonsentence-for-insurance-fraud-three-others-spared-jail-for-assault.html .
7

initials in order to protect their identity can be used. Complaints are dismissed for a variety
of reasons, but the public should have always have access to the data that complaints were
made and the reasons they were not referred for a hearing. This will also assist with the
periodic review of the new street check protocol.

E. The OIPRD should ask complainants if they will self-identify as to their race and religion.
The government should study this information to determine whether street check
enforcement is discriminatory in effect.

F. The OIPRD should not refer any complaints to the same subject police service for
investigation. An independent body must conduct the investigation. The OIPRD should be
given additional and adequate resources to be able to perform this task.

G. Reputable criminal defence lawyers should be hired to assist he OIPRD with screening
complaints not just former prosecutors. Combined and diverse experiences should be
utilized in the screening process.

H. All investigative reports and analysis involving street checks should be produced for the
Ministers periodic review. Again, where the complaint was not referred for a hearing and
this data will be used for study purposes, identifiable information pertaining to the
complainant should be anonymized.

I.

In determining whether a street check may be the product of racial profiling, the OIPRD
should specifically consider the constellation of circumstantial evidence of prejudicial
decision-making. Racial profiling is rarely proven through direct evidence. Guidelines on
6

how to identify profiling should be implemented. (The CMLA is prepared to assist in


formulating these guidelines.)

J.

Complaints deemed to meet the threshold for referral to a hearing should be referred to an
independent and impartial hearing instead of to the chief of police or his or her designate.
The trier of fact should be a judge or a panel composed of two lawyers and a member of the
local community from which the complaint originates.

K. All police disciplinary tribunal hearing decisions and penalties imposed (at hearings of first
instance and not just appeals) under the Police Services Act should be published on
searchable databases such as www.CanLII.org so that they are accessible to the public.
Contrary to current practice, the police must not be permitted to refuse to publish the
decision or penalty for public review or only make it available upon request and payment
for the transcript.9 10

L. Guidelines should be implemented for penalties for a finding of failing to follow the new
street check regulation. The guidelines must devise a set of aggravating factors and include
the heightened possibility of suspension without pay or dismissal where racial profiling is
involved or repeated misconduct is apparent.11

The Toronto Star reported that it took months to obtain disciplinary records from various police boards, and
the Peel Regional Police had still not provided the full decisions at the time of publication.
http://www.thestar.com/news/canada/2015/09/19/hundreds-of-officers-in-the-greater-toronto-areadisciplined-for-serious-misconduct-in-past-five-years.html
10 See the Toronto Star report on the Durham Polices refusal to disclose the penalty levied against Constable
James Ebdon for his discreditable conduct conviction
http://www.thestar.com/news/crime/2015/09/13/court-case-offers-new-details-on-durham-cop-whothreatened-to-plant-cocaine-on-suspect.html.
11 Supra. at 9. In the same article the Toronto Star quoted OPP Commissioner Vince Hawkes as saying that
Our hands are tied to attempt to deal with some of these individuals who dont deserve to be police officers
as an example of how the Toronto Star reported that police chiefs feel that the law does not give them
enough power to get rid of problem officers.
9

M. The OIPRD, police disciplinary tribunals, or Minister should have the authority to order the
destruction of data collected by way of an improper street check. This authority should be
enhanced in the case of improper street checks conducted against minors.

N. Members of the public should be able to receive upon request all of their personal
information collected by the police that is held in databases accessible to the police (subject
to any legally valid claims of privilege). In other words, the information derived from street
checks about individuals will be made available to them upon request. This will ensure a
heightened degree of transparency and ability for members of the public to challenge
mistakes.

O. Members of the public should be afforded an opportunity and advised of a process to


request the destruction of this information on the basis of inaccuracy or any other
prejudice. This would address situations akin to Mr. Desmond Coles where innocent
persons are repeatedly subject to street checks.12

P. Information on how to file a complaint should be made readily accessible within the
communities that are most heavily carded, including at schools and community centres.
Where possible, OIPRD officials should be encouraged to visit schools and community
centres to better understand the experience of being carded and to provide information on
the OIPRD complaint process and how to access data collected.

See The Skin Im In: Ive been interrogated by police more than 50 times all because Im black by
Desmond Cole, Toronto Life http://www.torontolife.com/informer/features/2015/04/21/skin-im-iveinterrogated-police-50-times-im-black
12

Q. Data retention periods should be limited.

Data pertaining to individuals should be

automatically expunged 5 years (2 years, in the case of minors) after being collected, unless
the individual is subject to an ongoing investigation or has been convicted of a crime.
The CMLA requests an opportunity to meet in person with the Minister to further discuss and
elaborate on our recommendations please feel free to contact us at the coordinates below. We
thank you for the opportunity to provide our insight on this important issue.

Canadian Muslim Lawyers Association


info@cmla-acam.ca

You might also like