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Police Carding, “Investigative Detention,” and Section 9 of the Charter

Police Carding, “Investigative Detention,” and Section 9 of the Charter

One of the hallmarks of individual liberty is the right to be free from arbitrary interference or detention. This right is so fundamental that it is included in section 9 of the Canadian Charter of Rights and Freedoms. This section provides:

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Recently in Ontario, the issue of “police carding” was brought to the forefront after a number of high profile journalists and community members came forward with their experiences concerning the controversial practice.

Essentially, carding (also known as “street checks”) involves police stopping individuals to collect information (name, date of birth, height, weight and other personal information). This information is stored and evaluated by local police forces. The police claim that carding allows for active community engagement and that it helps to deter crime. Police forces typically claim that the information gathered by carding in “high crime” areas can help to solve cases. The efficacy of the practice continues to be subject to considerable debate.

Recent news, however, suggests that the practice has been employed primarily in high crime neighbourhoods, and has disproportionately targeted visual minorities without any concrete evidence that they are actually engaged in any criminal behaviour.

In light of the growing concerns, the Ontario government has set out to explicitly limit the practice, and set out positive obligations on the police when it is employed. A review of the history of the practice and Ontario new proposed regime is outlined in this comprehensive Toronto Star article:

As a criminal lawyer, random police stops and checks pose very real legal issues for my clients. Random police stops frequently arise in drug, gun, and weapons cases. In certain cases, police in high crime areas may stop “suspicious” looking individuals and engage them in conversation. The police might ask if the individual for their name, whether they have any outstanding charges, whether they are currently on bail or probation, or “whether they have anything on them that they are not supposed to have.” The answers to these questions might provide the police with reasonable and probable grounds to subsequently arrest the individual and conduct a search of their person. The seizure of incriminating evidence incident to arrest may very well result in very serious charges. These types of questions might be asked by officers under the guise of “carding” or conducting a “street check.”

The issue of carding and “street checks” raises two fundamental questions: First, what is the scope of police authority to randomly stop and individual in the first place; and second, if permitted to stop the individual, what are the police allowed to do?

The act of stopping of individuals on the street raises very real Charter concerns. First, it must be understood that s. 9 of the Charter only pertains to arrests and detentions. Whether an individual is under arrest is usually uncontroversial. However, the question of whether an individual has actually been detained involves a further fact-based inquiry.

In R. v. Grant, the Supreme Court of Canada explained that not every interaction with police amounts to a “detention.” The Supreme Court of Canada explained that: “a detention refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. In the case of a psychological detention the Court reasoned:

psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply…. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:  (a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual; (b) the nature of the police conduct; and (c) the particular characteristics or circumstances of the individual where relevant.

Having canvassed the issue of what constitutes a detention, the next question is whether the detention of an individual is justified, or whether it is arbitrary. If the police have reasonable and probable grounds to arrest, detention is a non-issue. It is a different situation where police conduct random stops to speak with “suspicious” looking individuals, or random people in high crime areas. This is where carding becomes controversial.

The police have a power at common law to conduct something called an “investigative detention.” This power was clearly recognized and outlined in the landmark Supreme Court of Canada case called R. v. Mann. In Mann, the Supreme Court of Canada affirmed that police might, in certain circumstances, detain individuals prior to formulating the necessary reasonable and probable grounds to arrest. However, investigative detentions are subject to the following limits:

1)    the police may detain an individual for investigative purposes “if there are reasonable grounds to suspect in all of the circumstances that an individual is connected to a particular crime and that such a detention is necessary.”

2)    The question of whether there are “reasonable grounds to suspect” is to be determined objectively.

3)    Upon an investigative detention, an officer may engage in a protective  “pat down” search where issues of officer safety exist. There must be reasonable grounds to believe that officer safety is at risk, and the pat down search must be conducted reasonably.

4)    A “pat down” search is not to be an evidence-based search. Police should not be looking in pockets, bags, purses, etc.

5)    The investigative detention must be brief in duration and must be carried out in a reasonable manner.

6)    There is no obligation for the detained individual to answer any questions.

Interestingly, in Mann the Supreme Court did not specifically require that the police inform the individual that they do not have to answer any questions, and that they can simply request to carry on their way. All individuals subject to an investigative detention have these rights. Subject to the development of further grounds to detain, or the formation of reasonable and probable grounds to arrest, police should allow the detained individual to leave.

In light of this legal framework, we can see that the legality of carding under the current law is very nuanced. In some circumstances, an individual may not be subject to an investigation, but may very wish to well freely interact with police. In other circumstances, individuals may feel that they are being psychologically detained and that they have no choice but to stop, interact with police, answer questions, and provide sensitive personal information. It is this latter situation that appears to run afoul with the Charter. This situation has been shown to occur much more frequently in practice.

Essentially, if a police stop for “carding” purposes: 1) results in the detention of an individual, either physically or psychologically; 2) does not meet the requirements for an investigative detention under R. v. Mann, then the detention is arbitrary and contrary to s. 9 of the Charter.

The new framework proposed by the Ontario Government attempts to address the grey areas sounding carding and gaps left by the Court in R. v. Mann. Importantly, it appears that the new law will ban all arbitrary stops without a valid “policing purpose.” Moreover, where a stop is conducted, the new law will require police to:

 1)    tell you that you have the right to walk away from the interaction;

2)    inform you that the interaction is voluntary and that you do not have to provide any information;

3)    provide a reason for the stop;

4)    provide a written record of the stop/interaction;

5)    provide the individual with information about the particular officer, such as a badge number;

6)    inform the individual about the process to make a complaint.

The changes proposed by the Ontario government mark a significant step toward more equitable and Charter compliant policing in the province. However, it remains to be seen how the new framework, once enacted, will play out in practice.