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TPS racial profiling and carding: OHRC deputation at November 18, 2013 public meeting inviting public comment on PACER report and Mukherjee report

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November 18, 2013

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The Ontario Human Rights Commission (OHRC) continues to have significant human rights concerns about racial profiling and its impact on racialized and Aboriginal Peoples. In particular, we raised concerns about the current practice of carding[1] in our deputation to the Toronto Police Services Board (TPSB) on June 20, 2013, including:

  • The gross over-representation of African Canadians in the Toronto Police Service (TPS)’s contact card database, which strongly suggests racial profiling is occurring[2]
  • Interactions associated with contact cards are commonly experienced as detentions and restraints of liberty[3]
  • Stops may lead to unreasonable questioning, requests for identification, intimidation, searches and aggression.[4]

We called on the TPS to stop carding until policies and procedures were fully developed and assessed against the Human Rights Code and the Charter. We still take that position.

We have reviewed the Phase II report of the Toronto Police Service’s Police and Community Engagement Review (the PACER Report). Several recommendations
in the report are positive steps. The OHRC supports creating a standing community advisory committee to assess and address racial profiling;[5] conducting community surveys to evaluate and address issues relating to public trust and racial profiling;[6] monitoring officer performance trends and indicators that may relate to racial bias;[7]and reporting publicly on “Community Safety Note” related procedures and practices.[8]

However, although the PACER report suggests some changes to the practice of carding, it appears that the TPS still intends to stop individuals and ask for, record and store their personal information and circumstances without clear and lawful criteria. 

Without such criteria, the TPS and the TPSB cannot ensure that carding complies with the Human Rights Code and the Charter. Chair Mukherjee also recommends that the Chief of Police develop bona fide investigative criteria for carding.[9] However, we must repeat: 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, the practice must be stopped.

Since our last deputation, the Toronto Star released its new analysis of TPS carding data from 2008 to 2012. Those findings have only increased our concerns that TPS carding continues to have a significant negative impact on the African Canadian community, particularly young Black men:

  • Between 2008 and the end of 2012, the number of street checks increased by 23 percent[10]
  • African Canadians remained three times more likely than White people to be carded. Although they represented only 8% of the Toronto population, African Canadians were the target of 23% of all contact cards filled out between 2008 and 2012[11]
  • In each of the city’s patrol zones, African Canadians remained more likely than White persons to be subjected to police stops that result in no arrest or charges being laid[12]
  • The number of young Black males, aged 15 to 24, who were documented at least once in the police patrol zone where they live, exceeded the young Black male population for all of Toronto[13]
  • The Toronto Anti-Violence Intervention Strategy (TAVIS) unit had the highest Black carding rate of any policing unit. 83% of TAVIS cards were for general investigation (not the result of a specific traffic violation, criminal investigation or suspect description) and 40% of these cards were of African Canadians.[14]

The PACER report does not resolve our concern that the TPS practice of carding violates the Human Rights Code and Charter because:

  • It is essential to have a fully-developed and transparent procedure that has been assessed against the Human Rights Code and the Charter. This is required to provide effective training[15]
  • It appears that all that is required to card an individual, or complete a “Community Safety Note,” is that someone “draw the attention of police” and engage “community safety.”[16] This is no different than stopping someone for the purpose of “general investigation”
  • There is no indication officers will be instructed to advise individuals who are the subject of “Community Safety Notes” that their participation is voluntary and that they are free to leave
  • It appears that being present in a “high crime area” may be enough to justify a “Community Safety Note”[17]
  • There is a lack of information on how contact card data is used [18]
  • There need to be clear disciplinary consequences or other accountability measures for officers who exhibit racial bias.

We have reviewed Chair Mukherjee’s report and support his recommendations that direct the Chief of Police to:[19]

  • Develop bona fide investigative criteria for carding
  • Provide for the monitoring and supervision of officers against the bona fide investigative criteria with accountability mechanisms
  • Purge existing information from the TPS database where there is no bona fide investigative justification for retaining such information
  • Eliminate performance and productivity measures based on the collection of contact cards
  • Undertake a review of TAVIS practices against the Human Rights Code.

We agree that bona fide investigative criteria, training, supervision and monitoring, reporting, and accountability mechanisms are essential first steps to stop carding from violating the Human Rights Code and the Charter.

We continue to offer our assistance to the TPS and TPSB to apply a human rights lens and help ensure that procedures that are developed comply with the Human Rights Code

[1] Toronto Police Services Board Special Public Meeting, Agenda Item 1 (November 11, 2013) [“Mukherjee Report”].Carding is the police practice of completing a documentation containing information about the individual with whom a contact occurred, and of entering that documentation in a police database.

[2] 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.

[3] Toronto Police Services Board Minutes (April 25, 2013) at #P121, Appendix A, Summary of Deputations, Deputation of Law Union of Ontario; CCLA Deputation November 14, 2012.

[4] CCLA Deputation, March 21, 2012.

[5] Toronto Police Service, the Police and Community Engagement Review: Phase II – Internal Report and Recommendations (October 4, 2013) at 55 [“PACER Report”].

[6] Ibid.

[7] Ibid., at 57 and 58.

[8] Ibid., at 76 and 77. 

[9] Mukherjee Report, supra note 1.

[10] Toronto Star Analysis Package (August 7, 2013) at 5.

[11] Ibid., at 5 and 7.

[12] 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. 

[13] Ibid

[14] Ibid; Toronto Star Analysis Package (August 7, 2013) at 15-17; Note: TAVIS involves targeted and
pro-active policing in “at-risk” neighbourhoods.

[15] PACER Report, supra note 1.
An Informal Interaction is defined as:

A simple “meet and greet” communication between an Officer and a community member, wherein a limited exchange of information may occur. An Informal Interaction concludes with no formal process or documentation submitted.

A Community Inquiry is defined as:

An in-person communication between an Officer and a community member wherein the Officer, for the purposes of preserving the peace and/or preventing crimes or other offences, make inquiry of a community member.

Recommendation 2 includes that the procedure be rewritten to include and define the operational purpose of ensuring public safety, a legal and human rights framework, information management and retention requirements (an interim seven year retention period be set for all Community Safety Notes), new quality control processes and introduces heightened supervision standards.

[16] Ibid., at 53; The PACER Report states:

Of the hundreds of community members encountered by each Officer daily some people, due to conduct and/or context, specifically draw the attention of police. In order to distinguish between casual encounters and such situations wherein Officers are making inquiry as part of their duties under the Police Services Act, it is prudent to define the terms, “Informal Interaction” and “Community Inquiry” as components of community safety and deliver training to Officers with respect to the appropriate use of these terms.

[17] Ibid., at 45; The PACER Report states:
For instance, Officers can use objective data such as crime statistics to understand when crimes are being committed in certain geographical locations. With this information, Officers can better explain their enforcement in those locations in a manner supported by objective evidence and based on their duties as police officers to preserve the peace and prevent crimes or other offences. 

[18] Ibid., at 42; The PACER Report states the following:

Many people felt that the collection and retention of their personal information on police databases would have a negative effect on future employment prospects as well as their ability to travel… They also felt the expression “known to police” had a damaging effect.

[19] Mukherjee Report, supra note 1.