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Letter to Minister Orazietti regarding Street Checks Regulation

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August 10, 2016

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Hon. David Orazietti

Ministry of Community Safety and Correctional Services
18th Floor, George Drew Building
25 Grosvenor Street
Toronto, Ontario M7A 1Y6

Re: Street Checks Regulation

Dear Minister Orazietti:

I hope this finds you well.  As you may know, a broad network of legal groups, community advocates, academics and the Ontario Human Rights Commission (the “OHRC”) came together last year and called for tougher regulation on street checks and made joint submissions to the consultation process.  The government listened and showed leadership in consulting with stakeholders and developing the street checks regulation - Regulation 58/16 Collection of Identifying Information in Certain Circumstances – Prohibition and Duties (the “Regulation”). 

The OHRC is writing today to provide its comments on the Regulation in the hopes that they will be of assistance when it comes time to review the Regulation.  In particular, despite many positive aspects, the OHRC is concerned that the Regulation will not meet the ultimate goal of “building safer communities and protecting individual rights by banning the arbitrary and race-based collection of identifying information by police, referred to as carding or street checks.”

Positive Aspects

The OHRC is pleased that, among other things, the Regulation addresses the following:

Inappropriate use of race in street checks (subsections 5(1), (2), (3))

  • The Regulation offers some guidance on when race cannot form part of the reason for a street check if an officer is acting on a description of an individual.  For example, the Regulation prohibits street checks with a description of merely “young Black man” and requires that there be additional information. 

Rights Notification (subsection 6(1))

  • The Regulation has some proactive rights notification: officers are required to inform people of the reasons for street checks and their right not to provide personal information prior to attempting to obtain it.

Receipts (section 7)

  • Receipts will be provided in most circumstances.

Accountability for information in police street check databases (subsections 9(5), (6), (7), (8))

  • There is some accountability in terms of information entered into police databases.  A Chief or his/her designate conducts a review within 30 days after the personal information was first entered into a police database to determine compliance with the Regulation. If personal information was collected contrary to the Regulation, it must be stored in a restricted database.  A Chief or his/her designate must also conduct a detailed review of a random sample of street checks information in the unrestricted database to determine whether the information was collected in accordance with the Regulation. 

Review of the Regulation (section 17)

  • There will be an independent review of the Regulation after two years. 

Areas of Concern

Despite these positive aspects, the OHRC remains concerned that the Regulation as drafted will not prevent all arbitrary and discriminatory street checks, including those that amount to racial profiling, and we wanted to bring these concerns to your attention.  In particular, the OHRC highlights the following sections of the Regulation, which could be strengthened:

Scope (subsections 1(1)(a), (2))

  • The Regulation is unclear about whether it applies to street checks that involve the investigation of a specific offence which is problematic because so much of racial profiling occurs when officers are investigating a specific offence.

Permissible street checks (subsections 1(1)(b), 5(4))

  • The category of “inquiring into suspicious activities to detect offences” in the Regulation does not sufficiently guide officer discretion to prevent racial profiling.  African Canadians are already over-represented in street checks for “suspicious activities,” which is indicative of racial profiling.
  • The connection required in the 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 likely provide enough of a connection to gather personal information from any resident or visitor and satisfy the Regulation.   

Rights notification (subsection 6(1))

  • Officers are not required to advise individuals about their right to leave a street check.  Because of their background and experience, many racialized Ontarians, especially youth, do not feel safe to assert their right to leave.  Furthermore, youth are not required to be advised of their right to contact a parent or guardian or have a parent or guardian present.

Data collected for accountability purposes (subsection 14(2))

  • There is limited standardization regarding data that is collected for accountability purposes.  As a result, the Regulation does not ensure comparability and accountability such that trends can be observed across Ontario and data may be probative of racial profiling. 

Receipts (section 7)

  • The Regulation does not require the reason for the street check or the contact information of the Human Rights Tribunal of Ontario or Human Rights Legal Support Centre to be included on a receipt.  This information furthers access to justice.

Retention of street check data (paragraphs 12(1)4, 12(1)5 and subsection 12(2))

  • Street checks data collected before January 1, 2017 can be retained indefinitely and is not required to be purged. This furthers the adverse impact of racial profiling. 
  • Key recommendations around data collection, recording, retention and destruction recommended by the Information and Privacy Commissioner should be adopted including:
    • A requirement that officers assess whether there is a valid reason to record information in police databases prior to doing so;
    • A destruction schedule (5 + 2 years, subject to exceptions) for data that was collected in compliance with the Regulation.
    • A destruction schedule (2 years subject to exceptions) for data that was collected improperly.
    • A destruction schedule (2 years subject to exceptions) for data collected before January 1, 2017.

The OHRC hopes that its comments will assist the review of the Regulation. Thank you for your consideration. Please do contact me if the OHRC can be of any further assistance.

Yours sincerely,

Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner
Ontario Human Rights Commission

cc. Hon. Michael Coteau, Minister Responsible for Anti-Racism
Hon. Yasir Naqvi, Attorney General
Matthew Torigian, Deputy Minister of Community Safety and Correctional Services
Training Advisory Roundtable for the Street Checks Regulation
OHRC Commissioners