Toronto Police Service Racial Profiling and Carding:
OHRC Deputation at April 8, 2014 Special Public Meeting
Inviting Public Comment on the Toronto Police Services Board’s Draft Policy on Community Contacts
The Toronto Police Services Board’s Draft Policy is an important step in its efforts to monitor and oversee reforms to the current approach to Community Contacts. The Draft Policy refers to important principles including disengagement, rights knowledge, and compliance with the Human Rights Code and the Charter. We agree that surveys to gauge public satisfaction regarding street checks, and data collection in a separate database to monitor for racial bias in street checks, are valuable.
Although the Draft Policy has the potential to help the Board and the Toronto Police Service meet their human rights obligations, the Draft Policy itself does not resolve our human rights concerns. Much will depend on implementation.
Until clear and lawful criteria are developed and assessed against the Human Rights Code and the Charter, or guidance is provided in the form of an order by the Human Rights Tribunal of Ontario or the courts, as we have said many times, the practice must be stopped. Specifically, the practice of arbitrarily stopping individuals and recording and retaining their personal information and circumstances must be stopped.
The rationale for Contacts is still simply “ensuring public safety”. There is no indication in the Draft Policy about how officer discretion is to be constrained to avoid racial profiling. Clear and lawful criteria for the exercise of officer discretion are critical to ensure that racial profiling does not occur. To this end, “ensuring public safety”, “meet and greets”, “community inquiries” and contacts that are prohibited need to be clearly and lawfully defined.
As it stands, the only disciplinary consequence for inappropriate civilian contacts noted in the Draft Policy is “counselling”. We do not believe that is enough. Real accountability requires penalties, up to and including dismissal, when officer behaviour is consistent with racial profiling.
We understand that procedures are to be developed that may establish criteria for officer discretion and disciplinary penalties. We also acknowledge reports that carding has declined by 90%. However, without clear and lawful criteria and penalties, we are deeply concerned about what remains of the practice and its impact on the African Canadian community, particularly young Black men. We know that:
a. In the majority of cases, Toronto Police Service officers stopped civilians and asked for, recorded and stored their personal information and circumstances with no greater justification than the purpose of “general investigation”. Similarly, the Police and Community Engagement Review Report authorizes carding in situations broadly defined as “drawing the attention of police” or “engaging public safety”;
b. Such stops may lead to unreasonable questioning, requests for identification, intimidation, searches and aggression; and
c. There is a gross over-representation of African Canadians being issued contact cards in all Toronto neighbourhoods, including the patrol zones in which they live, and under the category of “general investigation”.
Racial profiling is systemic; it encompasses more than “carding” and affects many communities. A police stop may amount to racial profiling whether or not personal information is recorded. Although reports indicate that the Toronto Police Service has reduced carding by 90%, this does not necessarily mean that racial profiling has also declined.
As the Board understands, addressing racial profiling means more than monitoring “carding”; it is an ongoing process of human rights organizational change. It includes creating and putting into action clear policies and procedures; effective training that is continually reinforced; recruitment, retention and promotion of officers from diverse groups; partnerships with community groups; and race-based data collection and accountability mechanisms that consider all stops of civilians - not for the purpose of gathering intelligence, but reducing racial profiling.
The Ontario Human Rights Commission will continue to work with affected communities, the Toronto Police Service and the Toronto Police Services Board on this very important issue.
 “[R]acial profiling can be a subconscious factor impacting on the exercise of a discretionary power in a multicultural society.” See R. v. Brown, (2003) 64 O.R. (3d) 161 at para. 81 (C.A.)
“[R]acialization in Canadian society is a recognized fact both inside and outside the criminal justice system. Wherever broad discretion exists, racialization can influence decisions and produce racial inequality in outcomes.”
“How the police exercise their discretion to stop and question people contributes significantly to lack of confidence in equal treatment.”
The Commission on Systemic Racism in the Ontario Criminal Justice System’s recommendations include “guidelines for the exercise of police discretion to stop and question people, with the goal of eliminating differential treatment of black and other racialized people”.
See M. Gittens et al., Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, (Toronto: Queen’s Printer for Ontario, 1995) at iv, ix, and 359.
 Patty Winsa, “Carding Proposals under heavy scrutiny. Public gets first look at document, but lawyers say draft should have already been available” (March 13, 2014) Toronto Star GT2.
 In 2008, 55% of the contact cards filled out fell into the category of “general investigation”. See Toronto Star, Toronto Star Analysis of Toronto Police Service – 2010: Advanced Findings (2010) at 8 and 9.
Between 2008 and 2012, 79.1% of contact cards filled out fell into the category of “general investigation”. See Toronto Star Analysis Package (August 7, 2013) at 5 and 16.
Toronto Police Service, the Police and Community Engagement Review: Phase II – Internal Report and Recommendations (October 4, 2013) at 3 and 53.
 CCLA Deputation to Toronto Police Services Board, March 21, 2012
 Although they represented only 8% of the Toronto population, Black people were the target of almost 25% of all contact cards filled out between 2003 and 2008. Moreover, from 2008 to mid-2011, the number of carded young Black men was 3.4 times higher than the young Black male population. The data indicated that Black people were issued a disproportionate number of contact cards in all Toronto neighbourhoods. See Toronto Star, Toronto Star Analysis of Toronto Police Service – 2010: Advanced Findings (2010); Jim Rankin, “Race Matters: When Good People are Swept Up With the Bad” (February 6, 2010) Toronto Star A1; Jim Rankin, “CARDED: Probing a Racial Disparity” (February 6, 2010) Toronto Star IN1; Jim Rankin & Patty Winsa, “Known to Police: Toronto police stop and document black and brown people far more than whites” (March 9, 2012); ACLC Deputation, April 5, 2012; Toronto Police Services Board Minutes (April 25, 2013) at #P121, Appendix A, Summary of Deputations Toronto Police Accountability Coalition.
Toronto Star Analysis Package (August 7, 2013) at 5, 7, 15-17; Jim Rankin & Patty Winsa, “‘Devastating. Unacceptable’; Toronto police board chair appalled by Star findings that show a stubborn rise in the number of citizens stopped and documented by our police officers – with black males heavily overrepresented” (September 28, 2013) Toronto Star A1.
 Nassiah v. The Regional Municipality of Peel Services Board, 2007 HRTO 14 at paras. 113 and 114.