Carding happens everywhere, not just in Toronto. Police officers routinely ask individuals for identification when they are not suspected of criminal activity. It happens on the street, and it happens to passengers in vehicles. It happens across the country. While it is laudable that the Mayor of Toronto has vowed to end the policy of carding there, it would be naive to think that this signals an end to carding at large. The practice and injustice of carding has long predated the Toronto Police’s policy. Like all other Charter violations, when carding doesn’t lead to criminal charges, it never comes to light. Thanks to the Toronto Police’s official policy of carding, we know that it has been used to disproportionately target racial minorities. The practice of carding is offensive enough, it is even worse when it disproportionately affects minority groups and the poor.
Here’s a shocker: some people, including police officers, are racist. Lower income neighbourhoods are also subject to greater police oversight. So it really should come as no surprise that racial minorities and the poor are bearing the brunt of the police’s disrespect for the law. It is also apparent that but for criminal charges being laid, the public or the administration of justice would never become aware of this practice. So until the Toronto Police decided to make it an official policy, carding had largely fallen under the radar. It is emblematic of all individual rights that those who are charged with criminal offences serve as proxies for those of us who are never charged. I suppose we have the brazenly illegal policy of the Toronto Police to thank for publicizing the issue, otherwise who knows how long it would have taken.
But even without the layer of racial discrimination which is clearly a problem, carding is at its core an arbitrary exercise of police power. It is illegal because in most cases a person does not feel like they have a choice but to comply with the demand. The Ontario Court of Appeal ruled in R v Harris that when police ask a detained person for their identification, what they are really doing is conducting a seizure. In Harris, Justice Doherty referred to longstanding case law confirming that a person under police detention being asked to incriminate himself has a right to silence, and additionally he reasoned that a person enjoyed a reasonable expectation of privacy in the answers given. The information seized therefore attracts Charter protections under both sections 7 and 8. And it is trite law that when a seizure is conducted without reasonable grounds, it is unlawful.
The problem is that the law on detention is somewhat of a joke. On its face, the case law suggests that a person is detained when they reasonably feel like they have no choice to walk away from a police officer. In practice, some cases, including those emanating from the Supreme Court, have given far too narrow an interpretation of this aspect of detention. In most police interactions, the subject of the police attention does not feel free to leave, and yet the case law would suggest otherwise. The law, it is said, can sometimes be a bit of an ass. Going back to first principles, when a police officer asks a person for identification, it should be treated as a seizure, plain and simple. People involved in interactions with the police rarely if ever feel like they are in control of anything. It is this aspect of carding which has received such scant attention.
Anyone who routinely cross examines police officers in court will know that most of them don’t consider it a search to ask a person for their ID. I can assure you that most have not heard of R v Harris. Many officers conducting the practice consider it a justifiable exercise of their powers. In parallel, most people carded by police believe that it is their obligation to provide it to them, when in fact it is not. This dual ignorance has fueled the practice of carding, which, thanks to critics of carding such as Desmond Cole, is finally coming under increased scrutiny.
Police officers have defended this policy on the basis that it can often lead to solving crimes. No doubt, unconstitutional searches could often be justified on this ground. It is easier to solve crimes by violating the constitution than by respecting it. But a discussion of the arbitrariness of such searches has been eerily missing from the debate. Do the police need to be reminded that they must also obey the law? Rather than debate its legality, the supporters of carding have relied on the argument that it serves as a valuable investigative tool. By that rationale, perhaps we should allow the police to obtain a fingerprint and DNA sample from every person in Canada. Let’s throw in our computer and banking passwords as well. It would certainly assist in solving more crimes.
The Mayor of Toronto has responded appropriately to a groundswell of opposition to the official policy of carding. Please, let’s not think for a second that this is not happening everywhere. Carding is an inherently arbitrary and illegal exercise of police power, and it seeks to take advantage of those who do not understand their rights. The courts have for too long failed to recognize this on a practical level. It’s time to have a serious discussion about the inherently coercive nature of police interactions.
It’s time to end carding everywhere.