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OHRC submission to the Ministry of Community Safety and Correctional Services on street checks

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Ontario Human Rights Commission Submission
to the Ministry of Community Safety and Correctional Services

December 11, 2015

Executive summary

The Ontario Human Rights Commission (OHRC) welcomes the opportunity to comment on the Draft Regulation on street checks of the Ministry of Community Safety and Correctional Services (Ministry). The OHRC wholly endorses the objectives of the Draft Regulation, including ensuring that interactions are “consistent, conducted without bias or discrimination, and done in a manner that promotes public confidence and keeps our communities safe.”[1] 

Racial profiling is a clear violation of the Human Rights Code (Code); it is the primary basis for the OHRC’s comments on the Draft Regulation. Many racialized people in Ontario, especially African Canadians and Indigenous peoples, have experienced “carding” as yet another form of racial profiling. 

The Draft Regulation is a step forward; it offers some helpful prohibitions, rights protections and accountability measures to prevent some racial profiling in street checks. However, it does not go far enough. Its application is limited and it does not provide sufficient guidance to prevent racial profiling in permissible street checks (i.e. when an officer is gathering information for criminal intelligence purposes, or inquiring into “suspicious activities”[2]).    

Racial profiling can and does occur in street checks when an officer is investigating a particular offence. However, the Draft Regulation’s prohibitions, protections and accountability mechanisms do not apply when police are investigating a particular offence.    

The Code prohibits the police from casting their investigative net widely on racialized individuals when dealing with a vague description involving race. However, the Draft Regulation does not. It allows race to be inappropriately used in street checks when police are dealing with a vague description, like “Black man in a hoodie.”

The connection required in the Draft Regulation between an individual and a permissible street check is weak; it permits police tactics that will likely have a disproportionate impact on African Canadians, Indigenous peoples and other racialized communities. Furthermore, African Canadians are already over-represented in street checks for “suspicious activities,” which is indicative of racial profiling. This category does not sufficiently guide officer discretion to prevent racial profiling. 

Because of their background and experience, many racialized Ontarians, especially youth, do not feel safe to assert their right to not answer officer questions, not provide identification or leave street checks. Although notification of the right to leave is required by the Draft Regulation, notification of these other important rights is not. 

Sufficiently detailed receipts for street checks are an effective monitoring mechanism. However, the Draft Regulation does not require an officer to indicate the reason for a street check on a receipt and gives an officer broad discretion to refuse to provide a receipt.

To reduce the adverse impact of street checks, street check data collected and retained for intelligence or investigative purposes that lacks a non-discriminatory reason must be purged. However, the Draft Regulation allows police services to indefinitely retain street check data that lacks a non-discriminatory explanation. 

Data collection on street checks for accountability purposes must ensure comparability and be probative of racial profiling. The Draft Regulation requires that data be collected on race, age group and sex based on officer perception but does not ensure comparability and accountability such that trends can be observed across Ontario and data may be probative of racial profiling. There needs to be greater standardization. 

Detailed training on racial profiling should be required for new recruits, current officers, investigators, supervisors and leadership. The Draft Regulation only requires training for police officers who attempt to collect personal information and does not specify that training be delivered on racial profiling, nor its associated principles and issues.

Police services boards must provide consistent, effective oversight and accountability with respect to racial profiling. The Draft Regulation provides some important direction to police chiefs, yet it fails to account for the authority and responsibility of police services boards to hold their services to account for racial profiling. Boards should conduct audits of compliance with the regulation and board policy and an independent monitor should oversee compliance with the regulation. 

To protect the right of Ontarians to be free from racial profiling in street checks, the OHRC urges the Ministry to make the necessary amendments to the Draft Regulation. The OHRC’s concerns with the Draft Regulation and recommendations for amendments include those set out below. For additional detail about the OHRC’s concerns and recommendations, please refer to the Joint Position.[3] The Joint Position, co-authored by the OHRC, expresses the views of several legal groups, community advocates and academics.

Introduction

The Ontario Human Rights Commission (OHRC) is the provincial statutory agency responsible for promoting and advancing human rights, and preventing systemic discrimination in Ontario. The OHRC has a number of functions under the Ontario Human Rights Code, including policy making, public education, inquiries, Commission-initiated applications to the Human Rights Tribunal of Ontario (HRTO), and interventions in legal proceedings. In addition, the OHRC has the power to monitor and report on anything related to the state of human rights in the Province of Ontario. This includes reviewing legislation, regulations and policies for consistency with the intent of the Code.[4]  

The OHRC welcomes the opportunity to comment on the Draft Regulation on street checks of the Ministry of Community Safety and Correctional Services (Ministry). The OHRC wholly endorses the objectives of the Draft Regulation, including ensuring that interactions are “consistent, conducted without bias or discrimination, and done in a manner that promotes public confidence and keeps our communities safe.”[5]

The Code sets out our most fundamental rights and responsibilities and has quasi-constitutional status.[6] Section 1 of the Code protects individuals from discrimination in policing services, because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.[7]

Racial profiling by police in Ontario is a violation of section 1 of the Code.[8] It is a form of racial discrimination[9] and the primary basis for the OHRC’s input. The OHRC’s input is significantly influenced by its expertise in what is required to address racial profiling.

The OHRC defines racial profiling as any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion or place of origin – rather than on reasonable suspicion – to single out an individual for greater scrutiny or different treatment. Racial profiling can occur because of a combination of the above factors with other grounds, like age and/or gender.[10]

The relationship between the Police Services Act and the Human Rights Code

The Code generally has primacy over other Ontario laws.[11] The Ministry should have regard for the Code when interpreting, applying or developing regulations under the Police Services Act[12], and when developing interpretive policies and guides.

The declaration of principles of the Police Services Act includes:

  1. The importance of safeguarding the fundamental rights guaranteed by the Charter of Rights and Freedoms and the Human Rights Code; and
  2. The need for sensitivity for the pluralistic, multiracial and multicultural character of Ontario society.[13]

Justice Morden reviewed these principles in his report on policing at the G-20 Summit and stated:

It could be thought that it should not be necessary to refer to the Charter and the Human Rights Code because, from their own force, they apply directly to every case in which the facts make them applicable. The purpose of section 1, paragraph 2 is not, however, to provide for the application of these two documents but, rather to remind those acting under the Police Services Act of their constant bearing on the performance of their duties. This is critically important because the exercise of so many police powers, for example, those of arrest, detention, search and seizure, and the laying of charges, involve rights that are protected by the Charter or the Human Rights Code. Accordingly, it is important that the Police Services Act should draw attention to these legal protections of fundamental rights that are so highly valued in our society and are at risk of infringement by police action. [Emphasis added][14]

In Shaw v. Phipps, the Divisional Court reviewed these principles and determined that “police officers therefore have a statutory duty to uphold the Code.[15]

Finally, the importance of human rights is reflected in the prescribed Code of Conduct of the Police Services Act, which prohibits discrimination or harassment on Code grounds.[16]

Carding and racial profiling

Many racialized people in Ontario, especially African Canadians and Indigenous peoples, have experienced “carding” as yet another form of racial profiling. The OHRC has repeatedly stated that:

  1. In the majority of cases, Toronto Police Service (TPS) officers stopped civilians and asked for, recorded and stored their personal information and circumstances with no greater justification than the purpose of “general investigation”;[17]
  2. Such stops may lead to arbitrary detentions, unreasonable questioning, requests for identification, intimidation, searches and aggression;[18] and
  3. There is a gross over-representation of African Canadians who were issued contact cards in all Toronto neighbourhoods, including the patrol zones in which they live, and under the category of “general investigation,” which is indicative of racial profiling.[19]

Racial profiling concerns in carding extend far beyond Toronto. African Canadians are over-represented in street checks in Peel,[20] Hamilton,[21] Ottawa[22] and London.[23] Indigenous peoples are over-represented in street checks in London[24] and Middle Easterners are over-represented in street checks in Ottawa.[25] In 2012, one Indigenous man was carded 14 times in Hamilton.[26]

McKay v. Toronto Police Services Board is an example of a street check tainted by racial profiling of an Indigenous man. Mr. McKay, an Indigenous man, and his friend were stopped in a laneway in Little Italy in Toronto at around 4:30 am by Officer Fitkin. There were concerns about break and enters in the area. At the time, Mr. McKay and his friend were delivering flyers. The HRTO accepted that the decision to follow Mr. McKay and his friend into the laneway, ask for identification and conduct a CPIC check were not discriminatory. However, the HRTO found that Officer Fitkin’s decision to pursue further investigation was discriminatory; it was most likely shaped by negative stereotypes of Indigenous peoples lacking credibility and being prone to criminality. Mr. McKay co-operated, his friend and the flyers corroborated Mr. McKay’s explanation for being in the laneway, the CPIC check confirmed Mr. McKay’s identity, there were no concerns about any outstanding charges, and McKay was not behaving suspiciously. However, Officer Fitkin investigated whether McKay’s bike was stolen, refused to consider McKay’s explanation of its purchase, arrested McKay for the wrong bike based on incomplete and flawed information, required that McKay submit further verification of his bike ownership, and conducted repeated criminal checks of McKay after his release. As a result, the HRTO found that McKay was discriminated based on race.[27]

The systemic nature of racial profiling

Racial profiling in policing is more than “carding.”[28] It is not limited to decisions to stop, question or detain someone, but can affect how people continue to deal with each other after an initial encounter.[29] It can occur in, for example, traffic stops,[30] searches,[31] DNA sampling,[32] arrest decisions[33] and incidents involving use of force.[34] 

Courts and tribunals have repeatedly recognized that racial profiling is a systemic problem in policing.

In Nassiah, the HRTO stated:

What is new (in the last two decades) is the mounting evidence that this form of racial discrimination is not the result of isolated acts of individual “bad apples” but part of a systemic bias in many police forces. What is also new is the increasing acceptance by the Courts in Canada that racial profiling by police occurs in Canada and the willingness to scrutinize seemingly “neutral” police behaviour to assess whether it falls within the phenomenon of racial profiling.[35]

Overall, the social science evidence establishes that statistically, racial minorities, particularly Black persons, are subject to a higher level of suspicion by police because of race, often coupled with other factors.[36]

In Peart, the Ontario Court of Appeal held that:

The community at large and the courts, in particular, have come, some would say belatedly, to recognize that racism operates in the criminal justice system…With this recognition has come an acceptance by the courts that racial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it.[37]

Addressing racial profiling by police requires a systemic response from the Government of Ontario that speaks to the concerns of affected communities.[38] Although the OHRC’s submission is restricted to addressing racial profiling in street checks, street checks must nonetheless be viewed in the larger context of anti-Black and anti-Indigenous racism.

In R.D.S., the Supreme Court cited the Ontario Court of Appeal’s decision in Parks and stated that:

Racism, and in particular, anti-black racism, is a part of our community’s psyche.  A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes.[39] 

In R. v. Williams, the Supreme Court acknowledged that there is widespread racism against Indigenous peoples and stated that:

Racism against aboriginals includes stereotypes that relate to credibility, worthiness and criminal propensity. As the Canadian Bar Association stated in Locking up Natives in Canada: A Report of the Committee of the Canadian Bar Association on Imprisonment and Release (1988), at p. 5:

Put at its baldest, there is an equation of being drunk, Indian and in prison. Like many stereotypes, this one has a dark underside. It reflects a view of native people as uncivilized and without a coherent social or moral order. The stereotype prevents us from seeing native people as equals.[40]

The limited application of the Draft Regulation (sections 1 – 3)

Racial profiling can and does occur in street checks when an officer is investigating a particular offence. However, the Draft Regulation’s prohibitions, protections and accountability mechanisms do not apply when police are investigating a particular offence.

African Canadians are over-represented in street checks in Peel, yet thousands of Peel’s street checks would be beyond the scope of the Draft Regulation. In 2014, 21.3% of street checks, or 3,013 street checks, were conducted to “search for a suspect(s) as a result of an offence in which a street interview may assist in identifying culprits.”[41]

Phipps v. Toronto Police Services Board is an example of racial profiling in a street check that is beyond the scope of the Draft Regulation – it involves investigating a particular offence. Constable Shaw was investigating a particular offence – phone lines that had been cut in the Bridle Path area in Toronto. Mr. Phipps, a Black Canada Post letter carrier, was stopped and asked for his identification. A check was performed that revealed nothing.[42] The Ontario Court of Appeal found that the HRTO’s conclusion that Mr. Phipps was racially profiled was reasonable and supported by the following findings:[43]

  • Constable Shaw stopped and questioned Mr. Phipps even though his appearance did not match the suspect description (White, East European men driving a vehicle);
  • Constable Shaw did not approach or question any White service or construction workers present in the same neighbourhood; and
  • Constable Shaw subsequently approached a white letter carrier in the neighbourhood to inquire about Mr. Phipps’s bona fides.

In his letter to Minister Naqvi of September 21, 2015, Chief De Caire of the Hamilton Police Service outlined another troubling example of racial profiling in street checks that is beyond the scope of the Draft Regulation – it involves investigating a particular offence. Speaking about an exchange of gunfire involving two young Black men in Hamilton last May, he wrote:

When we send officers to this area in response to the shooting, we are going to be stopping, talking and investigating young black males. We are going to be stopping and talking to as many people as possible because we do not know who might be a suspect, person of interest, victim, witness or a person who may wish to be a confidential informant. We don’t know until we gather the information.[44]

Based on Chief De Caire’s example, anyone who happens to be a young Black male is going to be stopped, questioned, and have information about them added to a police database without suspicion of wrongdoing. This is a textbook example of racial profiling in street checks, but it is beyond the scope of the Draft Regulation. 

The Policy on Community Contacts of the Toronto Police Services Board (TPSB) is responsive to this concern; it applies when police are “investigating a specific offence or series of offences.”[45] The OHRC urges the Ministry to amend the Draft Regulation such that it applies to police-community interactions, including when police are investigating a particular offence, subject to the specific exceptions detailed in the Joint Position. 

Prohibition against carding (section 4)

General

The Draft Regulation prohibits attempts at collecting personal information when officers are:[46]

  1. conducting a general investigation into offences that might be committed in the future if there are no specifics regarding those offences; or
  2. implementing programs to raise awareness of the presence of police in the community. 

These prohibitions will help prevent some racial profiling in officer attempts to collect personal information.

The Draft Regulation does offer some guidance that will help prevent racial profiling when officers are:

  1. gathering information, for criminal intelligence purposes, about individuals known or reasonable suspected to be engaged in illegal activities; or
  2. inquiring into suspicious activities for the purposes of detecting illegal activities. 

To this end, the Draft Regulation requires that the officer have an articulable reason that includes details about the individual that cause the officer to believe that identifying the individual may be relevant to these purposes. The reason cannot include that the individual is present in a high-crime neighbourhood as the sole basis for the attempted collection.[47] 

However, the connection required in the Draft Regulation between an individual and a permissible street check is weak; it permits police tactics that will likely have a disproportionate impact on African Canadians, Indigenous peoples and other racialized communities. For example, simply living in or visiting a building where there is suspected gang or drug activity would provide enough of a connection to gather personal information from any resident or visitor and satisfy the Draft Regulation. Furthermore, African Canadians are already over-represented in street checks for “suspicious activities,” which is indicative of racial profiling.[48] This category does not sufficiently guide officer discretion to prevent racial profiling.

Race

The Code prohibits the police from casting their investigative net widely on racialized individuals when dealing with a vague description involving race. However, the Draft Regulation does not. It allows race to be inappropriately used in street checks when police are dealing with a vague description, like “Black man in a hoodie.”

The inappropriate use of race in descriptions is a significant human rights concern. The OHRC has heard concerns from Black community members in Toronto that they are frequently told that they match the description of a suspect during street checks. 

In Maynard v. Toronto Police Services Board, the officer was investigating a gun-related incident involving a Black male suspect driving a black sports car, and decided to follow the man because he was a young Black man driving alone in a black BMW. The HRTO noted that the officer had no indication of the suspect’s age, and stated that the most reasonable explanation for the officer’s decision was that the claimant was a “black man, and specifically a young black man, driving a black vehicle…and as a result, he was stereotyped as a person with some probability of being involved in a gun-related incident.” The HRTO explained that it was consistent with a finding of racial profiling that all Black men driving alone in the area in a black car became possible suspects. The HRTO found that if the suspect had been a Caucasian man in the same circumstances, with no other defining characteristics, and with as little information available about the car and direction of travel, the officer would probably not have chosen to investigate the first Caucasian man he saw driving a Black car somewhere in the vicinity of the Malvern Town Centre.[49]

The OHRC recognizes that the non-discriminatory use of race in suspect, victim or witness selection is context specific. The OHRC recommends that, barring exigent circumstances, police be prohibited from using race in suspect, victim or witness selection unless the police are dealing with a specific description. Furthermore, as noted below, “a suspect, victim or witness description that lacks sufficient detail other than race” should not satisfy the required criteria for conducting a street check. For additional guidance in this area, the OHRC encourages the Ministry to review the Ottawa Police Service’s Racial Profiling Policy, which states:[50]:

A police officer shall not, in the absence of a reasonable and racially neutral explanation, maintain that a racialized individual matches the description of a known suspect where:

  1. there are clearly distinguishing features between the two individuals; or
  2. the officer cannot articulate what other parts of the description he or she was relying on (e.g. height, weight, age, location, or other features).  

Non-discriminatory, non-arbitrary legitimate policing activity

To permit non-discriminatory, non-arbitrary legitimate policing activity, while sufficiently guiding officer discretion to prevent discriminatory and arbitrary street checks, the OHRC recommends that the Draft Regulation be amended to adopt the following criteria:

  1. A police officer may not approach an individual in a non-arrest scenario that involves and/or is for the purpose of asking for and/or obtaining identification, personal information and/or information about an individual’s circumstances, except for legitimate non-arbitrary non-discriminatory policing activities as set
    out in clause 2 below (Clause 2).
  2. A police officer may only approach an individual in a non-arrest scenario that involves and/or is for the purpose of asking for and/or obtaining identification, personal information and/or information about an individual’s circumstances if:
  1. The approach is solely for the purpose of investigating a specific criminal offence or series of specific criminal offences and the officer has reasonable suspicion that the individual is implicated in the criminal activity under investigation and/or the officer has reasonable belief that the individual is connected to the offence as a victim and/or witness; or,
  2. The approach is solely for the purpose of preventing a specific type of offence from occurring and the officer has reasonable suspicion that the individual is implicated in the criminal activity under investigation and/or the officer has reasonable belief that the individual is connected to the offence as a victim and/or witness;
  3. The officer believes that the approach and request for identification, personal information or an individual’s circumstances is necessary to prevent an imminent or apparent risk or harm to the individual or another identified person;
  4. The officer is aware that the approach is necessary because the individual is under a statutory obligation to provide a license or identification, such as when an individual is operating a motor vehicle;
  5. The officer is aware that the approach is necessary for the enforcement of a provincial statute or municipal by-law; or,
  6. The officer is securing a potential crime scene, participating in a security detail or acting in an emergency, and requests identification from an individual in a restricted area or seeking to enter a restricted area in order to determine whether the individual should have access to the area and under what conditions. 
  1. The following are not a basis for street checks and shall not satisfy Clause 2 of this Position:
  1. An unspecified future offence or criminal investigation, or a “general investigation”;
  2. Profiling or stereotyping based on race, gender identity, gender expression, sexuality, mental health, socioeconomic status, and/or other prohibited grounds of discrimination under the Charter or the Human Rights Code;
  3. A person’s exercise of his or her right to remain silent, right to object to being approached, or right to walk away;
  4. A “hunch” or unsupported suspicion or belief, whether based on intuition gained by experience or otherwise;
  5. Mere presence in a particular neighbourhood, high-crime neighbourhood or “hot spot”;
  6. A suspect, victim or witness description that lacks sufficient detail other than race;
  7. Meeting a quota or performance target for number of street checks; and,
  8. Raising awareness of police presence in the community.
  1. For greater certainty:
  1. An approach in the absence of reasonable suspicion or reasonable belief as set out in 2(a) or 2(b), for the purpose of eventually acquiring such reasonable suspicion or belief, shall not satisfy 2(a) or 2(b).
  2. Prolonging any interaction with the intent of acquiring reasonable suspicion or belief as set out in 2(a) or 2(b) shall not satisfy 2(a) or 2(b).

Rights notification (section 5)

Many racialized Ontarians, especially youth, do not feel safe to assert their right to not answer officer questions, not provide identification or leave street checks. As the HRTO determined in Abbott, the imbalance of power between a police officer and an individual can be “inappropriately exacerbated when it is layered on top of a racial and gender power dynamic.”[51] Similarly, in his partially concurring reasons in the Grant case, Justice Binnie held that visible minorities “may, because of their background and experience, feel especially unable to disregard police directions, and feel that assertion of their right to walk away will itself be taken as evasive.”[52] In Fountain, the Ontario Court of Justice was prepared to assume that this might be particularly true for young Black males in some of the more heavily policed areas in Toronto. According to the Court, young Black males “seem to find themselves the target of pro-active-community policing on very frequent occasions.” [53]

Although notification of the right to leave is required by the Draft Regulation, notification of the rights to not answer officer questions or provide identification is absent. Such notification ought to be provided.

Receipts (section 6)

Sufficiently detailed receipts for street checks are an effective monitoring mechanism. However, the Draft Regulation does not require an officer to indicate the reason for a street check on a receipt and gives an officer broad discretion to refuse to provide a receipt. 

The reason for the street check should be included on a receipt with sufficient particularity, along with the contact information of the Human Rights Tribunal of Ontario. The broad exemption allowing an officer to refuse to provide a receipt because of “unreasonable circumstances” ought to be tightened. 

Data Collection and Retention (sections 7 and 8)      

Post-July 1, 2016

Given concerns with the narrow scope of the Draft Regulation and lack of sufficient guidance on permissible street checks to prevent racial profiling, officers would have unsecured access to some personal information collected through racial profiling even if the data complies with the Draft Regulation. This furthers the adverse impact of racial profiling. Street checks data that lacks a non-discriminatory explanation should not be entered into the database. If it is entered, it should be retained for the shortest period possible, not to exceed one year. 

Pre-July 1, 2016

Police services boards and the Minister are required to develop policies and chiefs of police are required to develop procedures regarding the retention of, access to and disclosure of personal information collected before July 1, 2016 assuming the Draft Regulation would have applied.[54] Again, officers would have unsecured access to some personal information collected through racial profiling. This furthers the adverse impact of racial profiling. Historical street check data that lacks a non-discriminatory explanation should be purged within the shortest period possible, not to exceed one year.

Data collection for accountability (section 13)

The Draft Regulation requires that data be collected for accountability purposes on officer attempted collections of identifying information that are within the scope of the Draft Regulation.  Data to be collected about individuals includes the following, and are to be collected based on officer perception:[55]

  1. Sex
  2. Age group
  3. Racialized group.

The OHRC is concerned that the Draft Regulation does not ensure comparability and accountability such that trends can be observed across Ontario and data may be probative of racial profiling. There needs to be greater standardization.

Thus, the OHRC recommends:

  1. Individual police services, at a minimum, be required to collect the data based on the following racial categories[56]:
  1. Indigenous Peoples
  2. White
  3. Black
  4. East Asian, Southeast Asian
  5. South Asian
  6. Middle Easterner
  7. Other Racialized Group
  1. Specific tabulations of the data that may be probative of racial profiling be required in the annual report (for example, the representation of young Black males in attempted collections of identifying information broken down by reason).
  2. Information collected include: the date, time, location, reason for and outcome of the attempted collection of identifying information. 

The OHRC is also concerned about access to the accountability data, the purpose of which is not to gather intelligence, but to identify, monitor and address racial profiling. Thus, the accountability data must be housed separately from intelligence or investigative data and not be accessed for these purposes. Data should be collected in a manner consistent with the human rights principles outlined in Count me in!, the OHRC’s guide to collecting human rights-based data.[57]

Training (section 10)

In Nassiah, the HRTO stated that “if officers are not appropriately trained on what may constitute racially biased profiling or investigation, they may consciously or subconsciously engage in this form of discriminatory conduct.” Given significant community concerns about racial profiling in street checks, detailed training on racial profiling should be required. However, the Draft Regulation does not specify that training be delivered on racial profiling, nor its associated principles and issues

Detailed training on racial profiling should be required for new recruits, current officers, investigators, supervisors and leadership – all of whom must uphold the Code and have roles and responsibilities under the Draft Regulation. However, the Draft Regulation only requires training for police officers who attempt to collect personal information.

Racial profiling training should:

  • Be designed and delivered by trainers with racial profiling expertise
  • Involve local racialized and marginalized communities in design, delivery and evaluation, including identifying relevant racial profiling scenarios
  • Convey the importance of good community relations
  • Describe the nature of racism, including its particular impact on Black and Indigenous communities
  • Explain that racial profiling violates the Code, Charter and Police Services Act with references to relevant case law
  • Explain in detail the requirements of the regulation with respect to street checks
  • Explain principles that apply when identifying racial profiling, such as how intent is not required to establish racial profiling
  • Incorporate role-play and scenario-driven learning modules to improve its “street-level application and articulation”[58], including scenarios dealing with street checks
  • Address how people who think they are being racially profiled might become angry or upset, and that this must not form the basis of further adverse treatment[59]
  • Communicate that racial profiling is unacceptable and will result in disciplinary penalties, up to and including dismissal
  • The nature of unconscious bias and its influence on police decision making

Accountability (sections 14 – 16)

Police services boards must provide consistent, effective oversight and accountability with respect to racial profiling. The Draft Regulation provides some important direction to police chiefs, yet it fails to account for the authority and responsibility of police services boards to hold their services to account for racial profiling. Boards should conduct audits of compliance with the regulation and board policy and an independent monitor should oversee compliance with the regulation. 


[1] Ontario, Summary of Draft Regulation on Carding and Street Checks (October 28, 2015), online: Government of Ontario www.ontariocanada.com/registry/view.do?postingId=20202&language=en

[2] Draft Ontario Regulation Collection of Identifying Information in Certain Circumstances – Prohibition and Duties (October 28, 2015), s. 4(2)(1) [“Draft Regulation”].

[4] Human Rights Code, R.S.O. 1990, c. H.19, s. 29.

[5] Summary of Draft Regulation on Carding and Street Checks, supra note 1

[6] Snow v. Honda of Canada Manufacturing, 2007 HRTO 45 (CanLII) at para. 19 [Snow].

[7] Human Rights Code, supra note 4, s. 1.

[8]Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14 (CanLII) at para. 112 [Nassiah].

[9] Ibid.

[10] Ontario Human Rights Commission, Paying the Price: The human cost of racial profiling (2003) at 6, online: Ontario Human Rights Commission www.ohrc.on.ca/sites/default/files/attachments/Paying_the_price%3A_The_human_cost_of_racial_profiling.pdf [Paying the price]; Ontario Human Rights Commission, Policy and guidelines on racism and racial discrimination (2005) at 19, online: Ontario Human Rights Commission www.ohrc.on.ca/sites/default/files/attachments/Policy_and_guidelines_on_racism_and_racial_discrimination.pdf [Policy on racism]   

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 33.

[11] Human Rights Code, supra note 4, s. 47(2); Snow, supra note 6 at paras. 19 and 20.

[12]Police Services Act, R.S.O. 1990, c. P.15.

[13]Ibid, s.1.

[14] Honourable John W. Morden, Independent Civilian Review into Matters Relating to the G20 Summit (Toronto, 2012) at 49.

[15] Shaw v. Phipps, 2010 ONSC 3884 at para. 91; Shaw v. Phipps, 2012 ONCA 155 at para. 42.

[16]Police Services Act, supra note 12, s. 80; Schedule, O.Reg. 268/10, ss.2(1)(a)(i), (ii).

[17] 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 Advanced Star analysis package (August 7, 2013) at 5 and 16.

[18] Deputation of the Canadian Civil Liberties Association to the Toronto Police Services Board, March 21, 2012; Deputation of the Law Union of Ontario to the Toronto Police Services Board, January 23, 2013.

[19] 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.

Between January 1, 2013 and November 13, 2013, Black people remained more likely to be carded in each of the city’s patrol zones. In July of 2013, there was a 75% drop in the number of contact cards filled out.  This was at the same time that the TPS required that officers provide receipts to individuals that were carded.  However, the proportion of contact cards filled out for Black people went up. Before the drop in 2013, 23.3% of contacts were of people with Black skin. After the drop, it went up to 27.4%. Preliminary Toronto Star analysis of updated Toronto Police Service carding data (July 23, 2014)

[20] Report of Chief Evans to Peel Police Services Board, Street Checks Process (September 23, 2015) [Report of Chief Evans].

[22] Report of Chief Bordeleau to Ottawa Police Services Board, Ottawa Police Service Plan for Participation in Provincial Street Check Review (July 27, 2015) [Bordeleau Report].

[24] Ibid.

[25]Bordeleau Report, supra note 22.

[27] McKay v. Toronto Police Services Board, 2011 HRTO 499 [McKay]

[28] R. v. Laforme and Martin, 2014 ONSC 1457 at para. 173.

[29]Nassiah, supra note 8 at para. 134; Peel Law Association v. Pieters, 2013 ONCA 396 at para. 134.

[30]R. v. Brown, [2003] O.J. No. 1251 (C.A.) [Brown]; Johnson v. Halifax (Regional Municipality) Police Service, [2003] N.S.H.R.B.I.D. No. 2.

[31] Nassiah, supra note 8 at paras. 124 and 166; McKay, supra note 27 at paras. 143-149 and 159.

[32] Ontario Human Rights Commission, Submission of the Ontario Human Rights Commission to the Office of the Independent Police Review Director’s Systemic Review of Ontario Provincial Police Practices for DNA Sampling (2014), online: Ontario Human Rights Commission

www.ohrc.on.ca/en/ohrc-submission-office-independent-police-review-director%E2%80%99s-systemic-review-opp-practices-dna

[33] McKay, supra note 27 at paras. 150-153.

[34] Maynard v. Toronto Police Services Board, 2012 HRTO 1220 at paras. 177-190 [Maynard].

[35] Nassiah, supra note 8 at para. 113.

[36]Ibid, at para. 126.

[37]Peart v. Peel Regional Police Services, 2006 CanLII 37566 at para. 94 (Ont. C.A.). 

[38] For more information about strategies to prevent racial profiling in policing, see Submission of the Ontario Human Rights Commission to the Office of the Independent Police Review Director’s Systemic Review of Ontario Provincial Police Practices for DNA Sampling, supra note 32.

[39] R. v. R.D.S.., [1997] 3 S.C.R. 484 at para. 46.

[40] R. v. Williams, [1998] 1 S.C.R. 1128 at para. 58.

[41]Report of Chief Evans, supra note 20

[42] Phipps v. Toronto Police Services Board, 2009 HRTO 877 at paras. 8-13.

[43] Shaw v. Phipps, 2012 ONCA 155 at paras. 22-24.

[44] Letter from Chief De Caire of the Hamilton Police Service to Minister Naqvi (September 21, 2015).

[45] Toronto Police Services Board Policy on Community Contacts (June 18, 2015)

[46] Draft Regulation, supra note 2, ss. 1(1), 4(2).

[47]Ibid, s. 4(2)

[48] Toronto Star Analysis of Toronto Police Service – 2010: Advanced Findings (2010) at 9.

[49] Maynard, supra note 34.

[50] Ottawa Police Service Policy on Racial Profiling (Policy No. 5.39, June 27, 2011) www.ottawapolice.ca/en/news-and-community/resources/Racial_Profiling_Policy27Jun11_FINALpdf.pdf

[51] Abbott v. Toronto Police Services Board, 2009 HRTO 1909 at para. 42.

[52] R. v. Grant, 2009 SCC 32 at para. 169.

[53]R. v. Fountain, 2013 ONCJ 434 at paras. 52 and 53.

[54] Draft Regulation, supra note 2, ss. 11(1)7, 11(3), 11(4), 12.

[55] Draft Regulation, supra note 2, s. 13.

[56] See, for example, the racial categories of the Ottawa Police Service Traffic Stop Race Data Collection Project: www.ottawapolice.ca/en/news-and-community/resources/Racial_Categories_1.pdf

[57] Ontario Human Rights Commission, Count me In! Collecting human rights-based data (2009), online: Ontario Human Rights Commission www.ohrc.on.ca/en/count-me-collecting-human-rights-based-data

[58] Toronto Police Service, The Police and Community Engagement Review (The PACER Report) Phase II – Internal Report and Recommendations (2013) at 14 online: Toronto Police Service www.torontopolice.on.ca/publications/files/reports/2013pacerreport.pdf at 14.

[59] Policy on racism, supra note 10 at 20; Maynard, supra note 34 at para. 154.