The new year had barely been rung in —12:35 a.m. — when there was a fight on Queen St. W., the victim taken to hospital in critical condition.
By the time this column is published, that man might be Toronto’s first homicide of 2019, blood splatter on a fresh page as the calendar flips. If not him, some other poor soul.
Across the city, violence struck here, there and everywhere on Jan. 1: A shooting, a stabbing, a broken bottle ground into a male’s face, a hit-and-run collision, several vicious kicks to the head.
Doubtless, as right-wing editorial writers sharpen their pencils, as tabloid columnists crank out vilifying copy, somebody will blame the chronic mayhem on law enforcement stripped of their investigative tools. To wit: the curtailment — not necessarily the end — of “carding,” as mandated by Regulation 58/16, introduced by the previous Liberal provincial government in 2016.
The correlation is dubious.
That is one of the findings contained in a 310-page doorstopper of a report by Justice Michael Tulloch, the Ontario Court of Appeal judge tasked with reviewing how the regulation has been applied throughout Ontario and its effectiveness.
Carding — a subset of street checks — is a bust, the regulation unevenly implemented, with cops largely uncertain of when they can legally stop and query, leading some jurisdictions to completely abandon face-to-face encounters with the public even when they might have reasonable cause to question, as long as it’s not random or arbitrary but based on intelligence-led “articulable cause,” a “constellation of objectively discernible facts.”
The language is lawyerly dense, which is an intrinsic fault of the regulation, writes Tulloch; perceived as “being too complicated and hard to follow,” written for lawyers, not police officers or civilians. “Even lawyers who I have consulted with agree.”
Example: The regulation sets out information that a police officer must record in a “regulated interaction” — those encounters which fall under 58/16. Yet the required information does not include the location of the stop or the age or the race of the person stopped. “Only by inference later in the Regulation — when such information is required to be analyzed — does it become apparent that such information must be recorded in every stop encounter.”
I’ve spent hours poring over the report and am still not altogether certain I understand all its contents. Whose brilliant idea was it to release the thing at 3 p.m. on Dec. 31, the day before a statutory holiday, to be speed-read by reporters, by which time it was well nigh impossible to reach experts in the field who might provide illumination.
Somebody in the government decided to pull that trick. A Tory government which did not set Tulloch upon this year-long review and which could, if it chooses, ignore its numerous recommendations completely.
Tulloch’s core recommendation is blunt: Random carding has minuscule value as a law enforcement tool and should be sharply curbed where it’s still being practised, specifically because its iffy value is not worth the damage caused to individuals — particularly those in disproportionately scrutinized minority communities, Black, brown and Indigenous — to say nothing of heightening distrust between those segments and police.
“It is recommended that the practice of randomly stopping individuals to gather their identifying information for the creation of a database for intelligence purposes be discontinued.”
Purely random stops, absent any discernible subjective and objective reason for doing so, based on some vague “spidey sense”: Never.
“A widespread program of random street checks involves considerable time and effort for a police service,” Tulloch writes, “with little to no verifiable results on the level of crime or even arrests.”
Many cops will disagree. It is precisely the “spidey sense” that informs their policing instincts as front-line officers with intimate knowledge of a place, a neighbourhood, a scene that feels wrong. But that can’t be enough, Tulloch argues, because of either tacit or overt biases. Under the regulation, race is absolutely prohibited in forming any part of a police officer’s reason for attempting to collect someone’s identifying information — information which no individual is compelled to provide unless police are making inquiries into suspicious activities, investigating an offence that has been or may be about to be committed, or gathering information for intelligence purposes, circumstances wherein a suspect can be detained or arrested.
Simply creating a database containing information on tens of thousands of people who’ve committed no crime — the crux of random carding — is a misuse of resources, an invasion of civil rights and indefensible.
It has become to too easy and knee-jerk malevolent to draw a straight line between carding reduced and gun/gang activity increased in Toronto in 2018. In fact, the Toronto Police Service had voluntarily curtailed street checks since 2014. There was nevertheless a significant decrease in gun deaths between 2016 and 2017 before last year’s surge. Between 2016 and 2018, Tulloch points out, the number of shootings declined by a combined 40 per cent in some designated high-priority neighbourhoods with historically high incidences of poverty and crime. Nor did a steep decline in street checks prevent Toronto police from a 65 per cent increase in gun seizures from 2017 to 2018.
More broadly, Ontario experienced the greatest reductions in homicides, along with Saskatchewan, in 2017, the year that the regulation came into effect.
“Overall, it is difficult to see anything contained in the wording of the regulation or in its proper application that would cause a spike in gun crime or violent crime,” writes Tulloch.
It may be true, however — and I wish that Tulloch had undertaken a deeper exploration of this area — that abandoning street checks has contributed to more flagrant gang activity in Toronto.
The argument pro random carding has become circular, says Tulloch. “Some police street checks were proper. The improper practice of random carding led to the Regulation. The Regulation led many police officers to not conduct any street checks, whether proper or not. The lack of any street checks at all might have encouraged some types of crime to increase. This increase in some crimes has led some people to argue that we should return to random carding. This assumes that it was the reduction of random street checks that caused the increase in some crimes, as opposed to the reduction of all street checks.
“The solution to these issues is not for police officers to fail to conduct street checks when it is prudent and appropriate to do so.”
Which means better understanding of the regulation, improved training and “supporting police officers who conduct proper street checks when there is a subsequent public complaint.”
Tulloch emphasizes that the regulation did not, does not, eliminate street checks. “Without any restriction, police officers can stop, question and ask people to identify themselves — if the officer reasonably suspects criminal activity.”
All that’s changed is that there has to be a good, justifiable or “articulable” reason for asking them to provide their identity.
“That is not an onerous requirement.”
Rosie DiManno is a columnist based in Toronto covering sports and current affairs. Follow her on Twitter: @rdimanno