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

Ontario Human Rights Commission Submission to the
Ministry of Community Safety and Correctional Services on street checks
​August 11, 2015

Executive Summary

The Ontario Human Rights Commission (OHRC) welcomes the opportunity to take part in the consultation of the Ministry of Community Safety and Correctional Services (Ministry) on street checks, which will inform the development of a regulation to standardize how street checks are conducted across Ontario. Racial profiling is a clear violation of the Human Rights Code (Code); it is the primary basis for the OHRC’s input. In the past few years, many racialized people in Toronto, especially African Canadians, have experienced “carding” as yet another form of racial profiling.

Racial profiling is a systemic problem in policing; it is more than “carding”. Addressing racial profiling in policing requires a systemic response from the Government of Ontario that speaks to concerns of affected communities.   The regulation of street checks through a human rights and Charter lens would be a step in the right direction.  However, a human rights and Charter lens does not appear in the Ministry’s Consultation Discussion Document.  Questions about racial profiling in street checks are absent; they ought to be front and centre. 

Broad and unguided officer discretion to initiate street checks is fertile ground for racial profiling.  Clear regulatory provisions that guide officer discretion to engage in street checks are essential to prevent racial profiling. In its Consultation Discussion Document, the Ministry states that street checks “are used by police to engage and record interactions with individuals whose activities and/or presence within their broader context (e.g. location, time, behaviour, etc.) seem out of the ordinary [emphasis added]”. In our opinion, the Ministry’s current description of street checks fails to guide officer discretion and will not prevent racial profiling.

The responsibility to tell individuals about the right to leave and not answer questions in a street check belongs to the police given the power imbalance between police officers and racialized individuals protected by the Code.  African Canadians, especially youth, often do not feel safe to assert their right to not answer questions or leave street checks with officers. 

Sufficiently detailed receipts for street checks are necessary. They are an effective monitoring mechanism.  They remind officers that they are required to have a credible non-discriminatory reason for the street check and a duty to articulate it. 

Given significant concerns about racial profiling in street checks and in overall police activity, the OHRC recommends that detailed training on racial profiling be required by the Ministry for new recruits, current officers, investigators and supervisors as part of street check regulation. Police officers should be required to take racial profiling training every 3 years.  

Racial profiling can occur in street checks whether or not information is entered into an intelligence or investigative database.  The OHRC recommends that the Ministry require major police services in Ontario to establish permanent data collection and retention systems to record race-based data on all stops of civilians. The purpose of these systems is not to gather intelligence, but to identify, monitor and address racial profiling. 

The OHRC recommends that the Ministry direct major police services in Ontario to develop appropriate accountability mechanisms to fully realize the benefits of race-based data collection on street checks for human rights purposes. Police services boards must provide consistent, effective oversight and accountability with respect to racial profiling. Officers should be disciplined, up to and including dismissal, when officer behaviour in street checks is consistent with racial profiling. 

Street check data collected and retained for intelligence or investigative purposes that lacks a credible non-discriminatory reason must be purged. On an ongoing basis, new data that lacks a credible non-discriminatory reason should not be entered in an intelligence or investigative database. 

Based on its description of street checks in its Consultation Discussion Document, the Ministry states that street checks “can help police understand community concerns and collect relevant information that may help solve and prevent crime”. However, the OHRC has never been provided with objective evidence to support this statement. The OHRC requests that information be produced to prove it. 

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.^[1]  
The OHRC welcomes the opportunity to provide input through the consultation of the Ministry of Community Safety and Correctional Services (Ministry) on street checks, which will inform the development of a regulation to standardize how street checks are conducted across Ontario.  The Ministry is seeking input from partners, like the OHRC, on a number of topics, including:

1. The circumstances when police may ask an individual for information;
2. The rights of those being asked for their information;
3. Data collection and retention; and
4. How to enhance accountability mechanisms and training requirements.^[2]

The Ministry states that it will establish rules that “promote public safety and protect individual rights, including the rights protected in the Canadian Charter of Rights and Freedoms and Ontario’s Human Rights Code”.^[3]      

The Code sets out our most fundamental rights and responsibilities and has quasi-constitutional status.^[4]  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.^[5] 

Racial profiling by police in Ontario is a violation of section 1 of the Code.^[6] It is a form of racial discrimination^[7] and the primary basis for the OHRC’s input.  The OHRC has identified Charter and Code concerns in the practice of “carding” in Toronto. While the OHRC’s input will provide commentary and recommendations regarding some Charter issues, 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.^[8]

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

The Code generally has primacy over other Ontario laws.^[9] The Ministry should have regard for the Code when interpreting, applying or developing regulations under the Police Services Act^[10], 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.^[11]

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]^[12]

In Shaw v. Phipps, the Divisional Court reviewed these principles and determined that “police officers therefore have a statutory duty to uphold the Code”.^[13]

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.^[14]

Definitions and a prohibition of “carding”

Over the past few years, “carding” has taken on a number of different meanings in Toronto.  The term or related terms have frequently appeared in the media, policies of the Toronto Police Services Board (TPSB), draft procedures of the Toronto Police Service (TPS), and in deputations and statements of the OHRC and community and advocacy groups.  In order to focus the OHRC’s recommendation on a prohibition of “carding”, it is necessary to clarify some of these definitions.   

The April 2014 Policy on Community Contacts of the TPSB, which was re-adopted on June 18, 2015, defines Contacts as “non-detention, non-arrest interactions between the Service and community members that involve the eliciting and/or recording of personal information”.^[15]  The Draft Procedure on Community Engagements of the TPS of April 16, 2015 used the same definition for a similar term – Community Engagement. 

This definition is abstract; it does not reflect the reality faced by some racialized communities but especially the Black community in Toronto, who have experienced “carding” as another form of racial profiling. The OHRC has repeatedly stated that:

1. In the majority of cases, 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”;^[16]
2. Such stops may lead to arbitrary detentions, unreasonable questioning, requests for identification, intimidation, searches and aggression;^[17] 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.^[18]

Given the negative impact of “carding” on Black community members protected by the Code, the OHRC and community and advocacy groups, including the Law Union of Ontario, Urban Alliance on Race Relations, Action for Neighbourhood Change Mt. Dennis, York Youth Coalition, and Justice for Children and Youth, have repeatedly called on the TPSB and TPS to the stop “carding” – defined, instead, as “the practice of arbitrarily stopping individuals for the purpose of recording and storing their personal information and circumstances in an intelligence database”.  This is the definition of the term that the OHRC recommends that the Ministry prohibit in its regulation when referring to “carding”.  However, this prohibition alone will not address the human rights and Charter concerns described above. 

The regulation of street checks

Racial profiling in policing is more than “carding”.^[19]  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.^[20]  It can occur in, for example, traffic stops^[21], searches^[22], DNA sampling^[23], arrest decisions^[24], and incidents involving use of force^[25]. 

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.^[26]

…

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.^[27]

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.^[28]

Addressing racial profiling by police requires a systemic response from the Government of Ontario that speaks to the concerns of affected communities.[29]  The regulation of street checks through a human rights and Charter lens would be a step in the right direction.  However, a human rights and Charter lens does not appear to be reflected in the Ministry’s Consultation Discussion Document.  Questions about racial profiling in street checks are absent; the OHRC recommends that they be prominently featured. 

Discussion question 1(a) - What is a street check? 

The OHRC defines “street checks” as non-arrest interactions between police officers and community members for the purpose of asking and obtaining identification, personal information or an individual’s circumstances.  “Street checks” do not include informal greetings or conversations.  However, they do include investigative detentions that are conducted for the purpose of asking for and obtaining identification, personal information or an individual’s circumstances.

Investigative detentions are inextricably linked to street checks and must be addressed in the regulation.  There is a fine line in street checks between general questioning and a focused interrogation amounting to a detention, which may be difficult to determine in particular cases.^[30]    

In R. v. Fountain, the Ontario Court of Justice found that “carding programs tread a very fine line” with respect to Charter compliance depending on the particular circumstances.^[31] As noted by the Supreme Court in Grant, in neighborhood policing the “non-coercive police role of assisting in meeting needs or maintaining basic order can subtly merge with the potentially coercive police role of investigating crime and arresting suspects”.^[32]  In fact, the courts have held that some individuals were arbitrarily detained contrary to s.9 of the Charter when officers were asking for and obtaining identification, personal information or an individual’s circumstances.^[33] 

It is the OHRC’s position that street checks cannot be divorced from investigative detentions.  For the Ministry to properly develop its regulation on street checks, perspectives from police services as well as community, advocacy and civil liberties groups on the circumstances when police may ask an individual for information and appropriate rights notification need to be canvassed and considered.      

Discussion question 1(b) - When should a police officer be allowed to question a member of the public and then record that information in a database?

A certain amount of officer discretion is inherent in policing, but broad and unguided discretion to initiate street checks is fertile ground for racial profiling.  Clear regulatory provisions that are consistent with racial profiling jurisprudence and guide officer discretion to engage in street checks are essential to prevent racial profiling.  In our opinion the Ministry’s description of street checks in its Consultation Discussion Document fails to guide officer discretion and will not prevent racial profiling.

The Ministry states that street checks are “used by police to engage and record interactions with individuals whose activities and/or presence within their broader context (e.g. location, time, behaviour, etc.) seem out of the ordinary [Emphasis added]”.  They are not limited, in part, to specific criminal investigations.  Rather, the Ministry states that they are “unrelated to a specific criminal investigation”.^[34]   This description of street checks is similar, in effect, to “general investigation” – the main category of contact cards issued in Toronto.  “General investigation” contacts were not the result of a specific traffic violation, criminal investigation or suspect description.  As indicated above, there is a gross over-representation of African Canadians who were issued contact cards under the category of “general investigation”, which is indicative of racial profiling.  

The courts and Commission on Systemic Racism in the Ontario Criminal Justice System recognize the negative influence of broad and unguided discretion on racial profiling.  In Brown, the Ontario Court of Appeal determined that “racial profiling can be a subconscious factor impacting on the exercise of a discretionary power in a multicultural society”.^[35]  Similarly, the Commission on Systemic Racism in the Ontario Criminal Justice System found that “wherever broad discretion exists, racialization can influence decisions and produce racial inequality in outcomes”.  Thus, the Commission on Systemic Racism recommended that guidelines be created “for the exercise of police discretion to stop and question people, with the goal of eliminating differential treatment of black and other racialized people”.^[36]

The Code also prohibits the police from casting their investigative net widely on racialized individuals when dealing with a vague suspect description involving race.  In Maynard, 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.^[37]

In Brown, the Ontario Court of Appeal cited studies on racial profiling that establish that it is more likely to occur in areas where its victims look out of place than in areas where their skin colour is prominent.^[38]

The OHRC has been working with the Law Union of Ontario, and others, to stop carding in Toronto.  The OHRC agreed in principle with the limits within which TPS officers may engage in street checks in the Law Union’s deputation to the TPSB of June 18, 2015.  According to the OHRC, those limits, as defined and modified below, are necessary to prevent racial profiling in street checks.  They build on the pro-active rights-based approach of the TPSB’s Policy on Community Contacts. 

1. A police officer may only approach an individual in a non-arrest scenario for the purpose of asking for and obtaining identification, personal information or an individual’s circumstances if:

1. The approach is solely for the purpose of investigating a specific criminal offence or series of criminal offences and the officer has reasonable suspicion that the individual is implicated in the specific criminal activity that is being investigated (i.e. a lawful basis to conduct an investigative detention);
2. The approach is solely for the purpose of preventing a specific offence from occurring; 
3. The officer believes on reasonable grounds that the approach and request for identification, personal information or an individual’s circumstances is imminently necessary for the personal wellbeing of the individual or another person;
4. The individual is under a statutory obligation to provide a license or identification;
5. 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. 

2. The following non-exhaustive list of reasons for conducting street checks shall not satisfy 1(a), (b), (c) or (e):

1. An unspecified future offence or criminal investigation;
2. A “hunch” or unsupported suspicion or belief, whether based on intuition gained by experience or otherwise;
3. Mere presence in a particular neighborhood, high-crime neighborhood or “hot spot”;
4. A suspect, victim or witness description that lacks sufficient detail other than race;
5. Meeting a quota or performance target for number of stops or street checks; and
6. Raising awareness of police presence in the community. 

3. An approach in the absence of reasonable suspicion required to detain for the purpose of eventually acquiring such reasonable suspicion shall not satisfy 1(a).

Discussion question 2(c) – Should there be limitations on the types of information police officers are permitted to collect during a street check?  Please describe. 

To eliminate any adverse effects on Code-protected groups of street checks data collected for intelligence or investigative purposes, the OHRC recommends the following:

4. Only personal information or information about an individual’s circumstances that is relevant to 1(a)-(f) (see above) may be asked for and obtained by a police officer in a given street check. 

Discussion questions 1(c) and 2(d) - What information should be communicated by a police officer to an individual during a street check?  When should that information be communicated?  Are there any challenges in communicating this information during a street check?  Are there unique issues to consider when addressing street checks of young people under the age of 18? 

The rights of those being asked for information

The police duty to inform an individual of his or her section 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention.^[39]  It includes the right to do so in private^[40] and be advised of the existence and availability of Legal Aid and duty counsel^[41].  The Charter right to counsel that arises on detention under section 10(b) also reflects the principle against self-incrimination - a principle of fundamental justice under section 7.^[42] Furthermore, section 10(a) of the Charter requires that individuals who are detained for investigative purposes be advised, in clear and simple language, of the reasons for the detention.^[43]

Young people have additional informational and procedural rights because of their vulnerability in the presence of persons in authority due to their age, life experience and level of maturity. These values are enshrined in s. 146 of the Youth Criminal Justice Act.  Section 146 requires that, during a detention, a young person be advised of the right to silence and warned of the potential use of any statement against him or her, as well as of the right to consult with a parent and to have that parent present while a statement is being made.^[44]

The responsibility for notification about the right to leave and not answer questions in a street check must reside with the police given the power imbalance between police officers and racialized individuals protected by the Code.

The exercise of power is inherent in the interaction between a police officer and any member of the public, given the powers that are granted to a police officer by statute. However, as the HRTO determined in Abbott, this imbalance of power can be “inappropriately exacerbated when it is layered on top of a racial and gender power dynamic”.^[45]  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”.^[46]  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.” ^[47]

Based on the foregoing, the OHRC recommends that the regulation address the following with respect to rights notification:

5. Whenever an officer approaches an individual pursuant to 1(a) (see above), the individual must be:

1. Told why they have been detained;
2. Told immediately that they have the right to a lawyer;
3. Told about Legal Aid and their right to free legal advice;
4. Allowed to speak to a lawyer, in private, as soon as possible, if they ask to do so;
5. Told they do not have to answer questions and that anything they say can be used as evidence; and
6. If under 18 years of age, told they have the right to contact a parent or guardian and to have that parent or guardian present while a statement is being made.
6. Whenever an officer approaches an individual pursuant to 1(b), or (c) (see above), the officer shall forthwith advise the person that they are under no obligation to answer questions or provide identification and that they are free to go.

Although 1-6 above will assist in preventing racial profiling and other Charter violations from street checks, they will not by themselves eliminate them.   Racial profiling may still occur when, for example, officers are approaching and interacting with individuals for the purpose of preventing a specific offence from occurring.  Effective training, monitoring and accountability mechanisms that are responsive to racial profiling in street checks and consistent with the Code are required.

Receipts

Sufficiently detailed receipts for street checks are an effective monitoring mechanism.  They remind officers that they are required to have a credible non-discriminatory reason for the street check and to articulate it.  Furthermore, they promote transparency and access to justice.  Receipts can assist individuals with filing applications to the HRTO under the Code and/or complaints of officer misconduct to the Office of the Independent Police Review Director under the Police Services Act.        

The OHRC recommends the following with respect to receipts:

7. Where an individual is approached pursuant to 1(a), (b), (c), (d), (e), or (f) (see above), the officer shall provide the person with a receipt which sets out the date, time, and place, the officer’s full name, badge number, and the reason for the approach with sufficient particularity about why that specific individual was selected for a street check.

Discussion question 2(a) - What type of training should police officers receive in order to conduct street checks? How often should police officers be required to take this training? Who within a police service should receive this training (for example, new recruits, front-line officers, supervisors)?

Training on the new street checks regulation should be scenario-based.  In each street check scenario, officers should receive instruction on their responsibilities to ensure proper conduct, which includes a detailed review of guiding elements on officer discretion to stop and question individuals and officer obligations with respect to rights notification.

Given the significant concern of racial profiling entering into street check activity, and general concerns about racial profiling in overall police activity, the OHRC recommends that detailed training on racial profiling be mandatory for new recruits, current officers, investigators and supervisors as part of street check regulation.  Police officers should be required to take racial profiling training every 3 years.  

The Toronto Police Service and the HRTO highlight the need for anti-racial profiling training. The Toronto Police Service’s Police and Community Engagement Review (the PACER Report) states that “the training of Officers is an essential part of ensuring the Service achieves its organizational aspirations of treating everyone in an impartial, equitable, sensitive and ethical manner.”^[48] As well, the HRTO has explained 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.”^[49]

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 Aboriginal 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”^[50], 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^[51]
• 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

Information about racial profiling should also be integrated into other training where it is particularly relevant, such as investigative detention, searches, customer service, and conflict de-escalation.

Discussion question 2(b) – Should police officers be required to collect personal and demographic information during a street check (such as name, date of birth, address, race)?

Racial profiling can occur in street checks whether or not information is entered into an intelligence or investigative database.^[52]  African Canadians are at particular risk from unjustified “low visibility” police interventions in their lives.^[53]   

The OHRC recommends that the Ministry require major police services in Ontario to establish permanent data collection and retention systems to record race-based data on all stops of civilians.  The purpose of these systems is not to gather intelligence, but to identify, monitor and address racial profiling. The 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.^[54]

The OHRC recommends that each police service’s data system record race information on both traffic and pedestrian stops. It should not include informal interactions (e.g. when an officer is simply saying hello), and need not include calls for service (e.g. when an officer is dispatched to respond to an alleged domestic assault).  The Ministry`s regulation on street checks should require that race data is collected whenever street checks are conducted.

The information collected on each stop should include: the date, time, location, reason for and outcome of the stop (no action, warning, ticket, summons, detention, arrest, Community Safety Note recorded etc.).  The reason for the stop may include 1(a)-(f) above, along with an explanation of why the person or vehicle was stopped. If  a person or vehicle was searched, that information should be recorded.  The name, address, age, and gender of the person stopped should also be recorded.  Racial background should be recorded based on officer perception.  This is the approach being taken in the Ottawa Police Service’s Traffic Stop Race Data Collection Project.^[55]

Race-based data collection is an important component of a comprehensive strategy to reduce racial profiling.  It can help major police services in Ontario to:

• Evaluate initiatives to reduce racially biased policing;
• Identify patterns of behaviour that are consistent with racial profiling and thus act to remove systemic barriers;
• Identify further opportunities for learning, and the development of policies/procedures as well accountability mechanisms; and
• Meet expectations and increase trust of communities affected by racial profiling. 

Discussion questions 3(a), 3(b) and 4(a) – If police services are required to report on their compliance with a regulation concerning street checks, who should receive the report?  What details should be included in those reports?  Should police officers be disciplined if they act improperly while conducting street checks?

The OHRC recommends that the Ministry direct major police services in Ontario to develop appropriate accountability mechanisms to fully realize the benefits of race-based data collection on street checks for human rights purposes.  For example, supervisors should review the data and ensure that there are credible, non-discriminatory reasons for the street checks, as well as that the checks fall under categories 1(a) to (f) above.  Officers should be disciplined, up to and including dismissal, when officer behaviour in street checks is consistent with racial profiling.  Effective accountability depends on clear guidance on when officers may engage in street checks.  As noted above, if the Ministry’s current description of street checks in its Consultation Discussion Document is not amended, race-based data on street checks and standards to measure compliance will not be effective in preventing racial profiling.        

Data collected on street checks for intelligence/investigative and for human rights purposes should be tabulated and publicly reported on by each police service.  Reporting should go beyond compliance with the regulation on street checks.  Race-based data collected on all stops to monitor and address racial profiling, which is described and recommended earlier in this submission, should be tabulated and publicly reported on by each police service.      

Police services boards must provide consistent, effective oversight and accountability with respect to racial profiling, including when it occurs in street checks.  To this end, police services boards must be clear and knowledgeable about their roles and responsibilities to eliminate racial profiling; have the skills, competencies and training in racial profiling to effectively perform related aspects of their governance role; have access to appropriate and effective support and resources to fulfill their obligations and make the right decisions to ensure accountability for racial profiling; measure and evaluate police service performance with respect to racial profiling using data collected on all stops and ensure continued improvement and sustainability; and provide appropriate information to the public on racial profiling to build confidence in policing. 

Although the Office of the Independent Police Review Director has the ability to investigate police activity consistent with racial profiling, it should also be empowered to issue mandatory orders to police services relating to racial profiling concerns.              

Discussion questions 5(a)-(d) – Should information collected from the public be stored for future investigative purposes?  Should information be collected during a street check be reviewed before the information can be stored in a database? If so, who should conduct this review and what criteria would need to be met before the information could be stored?  How long should police be able to keep information collected through a street check if the information is not being used for a specific investigation?  How might police services address historical collection of information (i.e., information already stored in databases prior to any provincial rules being put in place)?

The OHRC recommends that existing street check data collected and retained for intelligence or investigative purposes that lacks a credible non-discriminatory reason (for example, street checks that do not meet the criteria in 1-4 above) be purged within one year of the enactment of the regulation.  On an ongoing basis, new data that lacks a credible non-discriminatory reason should not be entered in an intelligence or investigative database.  As stated previously, supervisors should review the data and ensure that there are credible, non-discriminatory reasons for the street checks.  This will help to eliminate any adverse effects of such data on Code-protected groups.  However, if the Ministry’s current description of street checks in its Consultation Discussion Document is passed in a regulation, identifying and purging data that lacks a credible non-discriminatory reason will be difficult. 

The OHRC recommends that the Ministry consult with the Information and Privacy Commissioner of Ontario on the collection, retention, use, disclosure and destruction of personal information collected through street checks.

Discussion question 6(a) – Are there any additional key areas the government should consider regulating that relate to the practice of street checks?

As stated previously, racial profiling is not limited to decisions to stop, question or detain someone.  It can occur in, for example, traffic stops, searches, DNA sampling, arrest decisions, and incidents involving use of force.  Addressing racial profiling by police requires a systemic response from the province that speaks to the concerns of affected communities.   

Further comments

Based on its description of street checks in its Consultation Discussion Document, the Ministry states that street checks “can help police understand community concerns and collect relevant information that may help solve and prevent crime”.^[56]  However, the OHRC has never been provided with objective evidence to support this statement. We note that fewer than one in ten contact cards collected by the TPS between 2009 and 2011 “had been assigned a nature of contact which flagged the card as being directly related to an intelligence led policing strategy”.^[57]  We ask that information be produced to substantiate the Ministry’s statement.