10.29.2015 07:37 AM

Institutions, and why carding is illegal

I don’t detest the institution of the police. As with every other institution in society, it is an institution made up of good folks and bad folks.

So, my strong, strong objection to “carding” – the police practice of stopping individuals, without cause, to question them – doesn’t arise out of any hatred for the police. And I don’t object to carding simply because it is demonstrably racist, and because it tends to wrongly target young black men. I object to it because it is against the Constitution. Thus, I have written often about the issue, and I have even written a song about the arbitrariness of it all.

Kathleen Wynne’s decision to end carding is therefore welcome news. (I would have liked to see the announcement made somewhere in Scarborough Southwest before October 19, mind you, but at least it’s been made.) And it makes sense.

It makes sense, and has made sense, since 2009. Six years. What’s therefore amazing, to me, isn’t that carding was finally found to be unlawful – it’s that it has taken six years for the institution of government to acknowledge that.

In 2009, the Supreme Court of Canada ruled on R. v. Grant. Here are the facts, as penned by the high court itself:

“Three police officers were on patrol for the purposes of monitoring an area near schools with a history of student assaults, robberies, and drug offences. W and F were dressed in plainclothes and driving an unmarked car. G was in uniform and driving a marked police car. The accused, a young black man, was walking down a sidewalk when he came to the attention of W and F. As the two officers drove past, the accused stared at them, while at the same time fidgeting with his coat and pants in a way that aroused their suspicions. W and F suggested to G that he have a chat with the approaching accused to determine if there was any need for concern. G initiated an exchange with the accused, while standing on the sidewalk directly in his intended path. He asked him what was going on, and requested his name and address. At one point, the accused, behaving nervously, adjusted his jacket, which prompted the officer to ask him to keep his hands in front of him. After a brief period observing the exchange from their car, W and F approached the pair on the sidewalk, identified themselves to the accused as police officers by flashing their badges, and took up positions behind G, obstructing the way forward. G then asked the accused whether he had anything he should not have, to which he answered that he had “a small bag of weed” and a firearm. At this point, the officers arrested and searched the accused, seizing the marijuana and a loaded revolver. They advised him of his right to counsel and took him to the police station.”

Grant argued that his section 9 Charter rights – the right not to be arbitrarily detained or imprisoned – had been violated. Once his case wound its way through the system, the Supremes agreed.  (Grant was black, by the by.  Surprise, surprise.)

Wikipedia (uncharacteristically) has not-bad summary of the SCC decision in Grant, below:

“The majority found that “detention” refers to a suspension of an individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that they had no choice but to comply.

In cases where there is physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude the state had deprived them of the liberty of choice, the court may consider, inter alia, the following factors:

The circumstances giving rise to the encounter as would reasonably be perceived by the individual:

  • whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
  • The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
  • The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.”

What our highest court is getting at, here, is that when the police stop a person, that person will almost always feel compelled to stop.  And when the police ask that person questions, that person will almost always feel compelled to answer those questions, and not merely to be polite, either.  “Psychologically,” to use the Supreme Court’s phrase, the person reasonably feels they have been “detained.”

So, too, in the case of carding.  If a cop tries to stop a person to question them – a young black man, most of the time, but anyone else, too – the chances are exceedingly slim that that person will keep walking on by, cheerfully quoting the majority in R. v. Grant as they do so.  No, the chances are that they will stop, and submit to the questions. The uniform, the pepper spray, the handcuffs and the gun have that effect on people.

Thus, my view.  Carding isn’t now unconstitutional and therefore illegal – carding has pretty much always been unconstitutional and illegal.

All appearances to the contrary, we are a nation of laws.  And it’s well past time that the institution of the police, and the institution of government, acknowledged as much.



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    billg says:

    I agree. However, where do Ride Programs and roadside Spot checks now fit in now. Same premise as carding.

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      Mike says:

      Unlike in the US where individual rights are absolute, in Canada all of our Charter rights are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

      There are a number of instances where the Supreme Court has looked at the constitutionality of RIDE programs and random roadside checks. The Coles Notes version is that the Court has ruled that even though they may violate section 9, they are saved by section 1. In Dedman the Court reasoned that driving was “licensed activity that is subject to regulation and control for the protection of life and property.”

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        Warren says:

        I’m not talking about the many driving cases. I’m talking about the major walking case. Big factual difference (e.g.. no one can “drunk walk,” etc.).

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          Mike says:

          Warren, I agree with you on the carding. I was responding to billg’s comment on RIDE checks. From his comment he gave the impression that he thought RIDE checks were also illegal, and they’re not.

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            billg says:

            I was just curious. If, and I agree, you cannot stop a person walking on the sidewalk and ask them for ID and ask them where they are going and where they have been, then, isn’t the next logical step that you cannot do the same to an innocent person driving on the street?
            The infamous major who was caught in Trenton and found guilty of various murders of women in the area was caught by a full day of Spot Checks, all roads were basically shut down and they were looking for something specific in each vehicle, it was a shot in the dark.
            Would this not be considered the same as carding?

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    HarryR says:

    Good point, bilig, but repare to be deafened by the sound of stridulating crickets. Coming soon, black leather overcoats and “Papers, please!”

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    Eric Weiss says:

    Thank you for that. I’m a law and order small c conservative, that believes in the rule of law more than the need for order. The whole argument “if you’re not doing anything wrong, you have nothing to worry about” never carried any water with me. Carding has always been bullshit. People need to know what their their rights are.

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    Mitch says:

    100% Right and 0% Wrong Warren.

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    Maps Onburt says:

    One side of me agrees wholeheartedly. I have no interest living in a police state where cops can pull any of us over any time for any reason. It already feels like that when they hide behind overpasses and then jump out and force you to pay a toll for driving at the same speed as everyone else on the road (higher than the arbitrary limits that everyone else drives at. The other side of me says that if the cops saw something that makes them wonder if everything isn’t kosher then I don’t really have a problem with them asking some questions like “who are you and what are you doing?”. I haven’t been following the whole carding debate so perhaps they’ve taken it to a different level (in which case, I’d have an issue with that as well). I do know that if there were a bunch of Hell’s Angels looking like they might be scoping out my neighborhood, then I’d rather the cops ask them what’s up and make their presence known than sit back and wait for the 911 call. It seems like the US cops have gone off the deep-end in many cases and I sure don’t want to see that in Canada. A uniform and a gun doesn’t give a cop the right to be a bully. Unfortunately there are a small minority of cops who think it does. I have no problem with finding ways to take them off the force.

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    Mulletaur says:

    “Kathleen Wynne’s decision to end carding is therefore welcome news.”

    Carding is not ending. Wynne’s government has promised to end the illegal practice of “randomly and arbitrarily” carding. Which means it will simply continue just as it has before. Neither Saunders nor Blair before him has had any control of officers on the ground. Nothing will change.

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