Criminal lawyer Leo Russomanno and University of Ottawa Professor Vanessa MacDonnell published the following op-ed on "street checks" in the Ottawa Citizen on August 6, 2015:
Earlier this year, Desmond Cole authored a startling account of his experiences with “carding” in Toronto and elsewhere in Ontario. Cole, who is black, spoke of being stopped and questioned by police approximately 50 times. The story ran in Toronto Life Magazine against the backdrop of mounting criticism of carding.
It galvanized the public against the practice. The voices of opposition grew louder. Even the mayor of Toronto weighed in. The Toronto Police Services Board decided that it would permit a limited form of carding to continue while the province completed its study of the issue and proposed regulations. Critics of carding in Toronto, including Cole, remain unsatisfied and engaged.
Compare this to what happened last week at a meeting of the Ottawa Police Services Board. When Inspector Mark Patterson of the Ottawa Police Service presented a report showing that visible minorities are overrepresented among individuals subjected to “street checks”, the reaction was noticeably different. No questions were asked about the evidence of systemic racism revealed by the data, or any other aspect of the report for that matter. In an interview following the meeting, board chair Eli El-Chantiry came out strongly in favour of the lawfulness and utility of street checks. He categorically rejected the possibility that they were conducted in a racially discriminatory manner.
The numbers speak for themselves. In a city in which 5.7 per cent of the population is black, 20 per cent of those subjected to street checks are black. Although less than 5 per cent of the Ottawa population is of Middle Eastern origin, 14 per cent of street checks involved individuals identified as being Middle Eastern.
So why the lack of outrage? Is it because Cole’s narrative was personal, while the individuals in the Ottawa Police Service’s report are nameless, faceless statistics? Is it because the Ottawa police refer to the practice as a “street check” rather than “carding”? Is it something else?
After all, Ottawa has seen its share of high profile cases involving racial discrimination by police. Ottawa newspapers have covered the issue of street checks extensively. When the board met to discuss the police service’s report, one of the authors of this op-ed, Leo Russomanno, gave submissions urging them to seek an explanation for why visible minorities are overrepresented in the data. He also questioned the propriety of carding more broadly. Juxtaposed with the reaction in Toronto, the indifference of the board and other city officials – including the mayor – is jarring.
There is no doubt that the legal framework that governs police interactions with the public is complex. The law looks something like this. The police are only permitted to detain an individual when they have “reasonable suspicion” that the individual is involved in criminal activity. Absent reasonable suspicion, the police are, of course, allowed to question anyone, but an individual is always free to end the discussion. Detention is therefore a key concept in this context.
In the Supreme Court’s decision in Suberu, the Court explained that an individual is detained where “the officer’s conduct in the context of the encounter as a whole would cause a reasonable person in the same situation to conclude that he or she was not free to go and that he or she had to comply with the officer’s request.” In another case, Grant, the Supreme Court stated that a person’s race may be relevant in determining whether a person is detained. The court likely included this factor because racialized communities have historically been unfair targets of police scrutiny. If an individual is detained for questioning, his right to counsel and right to know the reasons for detention are triggered. When an individual chooses to exercise his right to counsel, the police may not question him further until he has spoken to a lawyer. This spells the end of the informal encounter.
The Ottawa Police Service’s report provides some clues about the types of circumstances in which this police service believes a street check will be justified: where there is “a strange van parked outside of an industrial complex late at night, an unknown individual talking to a known street gang member or a suspicious individual found late at night in a neighbourhood victimized by crime.” None of these examples meets the standard of reasonable suspicion. For these stops to be lawful, in other words, a reasonable person would have to believe that he is free to walk away.
Most people, if approached by a uniformed police officer, would feel obliged to stay put and cooperate. As the Supreme Court has recognized, this reality is even more pronounced when the individual stopped is a visible minority. This suggests that many of the individuals subjected to street checks in Ottawa may have been unlawfully detained. While advising individuals of their right to walk away during a street check might strengthen the argument that that the individual was not detained, Patterson is on record as saying that such a warning would “defeat the purpose” of street checks. It it deeply problematic that the police would knowingly take advantage of an individual’s ignorance of his or her rights to advance a police investigation.
We owe a debt of thanks to Desmond Cole for putting a human face on this troubling police practice. It is now time for the citizens of Ottawa and their elected representatives to do more to address systemic racism in our police force.
Leo Russomanno is a criminal lawyer practicing at Abergel Goldstein & Partners. Vanessa MacDonnell is a professor at the University of Ottawa, where she teaches criminal and constitutional law. They tweet at @len_1989 and @vanessa_macd, respectively.