He produced an exhaustive 310-page report probing the application and effectiveness of an Ontario regulation intended to limit the impact of street checks — specifically random solicitation of information by the police, known as carding, which has disproportionately affected, even traumatized, visible minorities, primarily Blacks and the Indigenous.
But already the explicitness that Tulloch sought to catalogue in his recommendations — bottom line, there is no merit to carding; it’s a clumsy tool for gathering relevant objective-based data and should be halted across the province, end of story — has touched off debate and dissatisfaction at both ends of the spectrum, from those who absolutely oppose any collecting of personal details to those who cleave to the belief that further handcuffing police will disastrously prevent law enforcement from doing their duty.
This clash was evident on Friday morning, when Tulloch formally presented his report at a news conference, four days after it was released online.
Street checks haven’t been and won’t be ditched. But relying on discriminatory stereotypes to stop and question individuals, justifying that as cop intuition, a “Spidey” sense of the suspicious, is fundamentally wrong. Directed at Blacks — who are 17 times more likely to be street checked, according to multiple bodies of research — it’s basically racial profiling.
The consequences are deeply harmful, both to the individuals stopped and the broader community. It deepens distrust between police and the public — if not that segment of the public which has been largely unaffected and more likely to support the practice.
“A community that trusts the police helps the police,” said Tulloch. “And a community that trusts the police respects the police.”
Adding: “Regardless of where we live, we all want to feel safe and we all want to have pride in our communities. We do not want to be stigmatized as criminals or victimized by criminals. We all share these common values. All Canadians want to feel safe in their communities and most reasonable people understand that we can’t feel safe if we don’t” have a professional police service working with the community to ensure the safety of the community.
“There are criminal elements in all communities. But no community wants to be defined by the criminal elements that prey on those communities.”
Ontario Regulation 58/16 is the first of its kind in Canada. It applies if a police officer asks a person to identify himself or herself when investigating general activity in the community and for general intelligence purposes. The regulation does not apply when investigating or detaining for a potential arrest in relation to a specific crime.
Tulloch frankly admitted that before he embarked on the review, he — a high-level judge — did not actually understand what constituted a street check. “During the course of the review, I found that my ignorance of these issues was widely shared.’’
Cops weren’t sure. Citizens weren’t sure.
Street checks and carding are not interchangeable terms, Tulloch stressed.
Police use the term street check to refer to any information obtained while an officer is out in the community, and that routinely includes observations made when no information was directly obtained from an individual.
“For the purpose of the report, a street check is limited to situations where identifying information is obtained by a police officer, concerning an individual outside of a police station that is not part of an investigation. Carding is defined to be a situation in which a police officer randomly asks an individual to provide identifying information when there is no objectively suspicious activity. The individual is not suspected of any offence and there is no reason to believe that the individual has any information about any offence.”
That information is recorded and stored in a stored police intelligence database.
Identifying information is not just a person’s name. It can include age, sexual orientation, marital status, socio-economic circumstances or employment history.
Unless a person is being placed under arrest (and some other limited circumstances), “people do not have to identify themselves to a police officer.”
You can walk away.
When does Regulation 58/16 apply? When an officer requests identifying information where police are inquiring into suspicious conduct or a potential offence, or where they’re gathering information for intelligence purposes, Tulloch explained. “During these interactions, there’s no obligation on the individual to provide identifying information and they are at all times free to go.”
But suspicious activities can be interpreted broadly. “Such a broad category can result in indiscriminate stops. For this reason, I’ve recommended that when police officers are requesting identifying information because they’re inquiring into suspicious activities or general criminal activities, they must have objective and credible grounds to justify these inquiries.”
Over an hour-long presentation, Tulloch methodically explained the legal framework for requesting — or, by the civilian, denying — identifying information and the subsequent storing of it in a database.
Regulation 58/16 compels the officer to make it clear that the person approached knows the exchange is voluntary, and provides a receipt recording the event. Further, any information entered in a police database must include a written explanation for why the stop was made. Such data would have relevance in any possible complaint made against the officer or in a lawsuit.
Tulloch has recommended that historical data be automatically destroyed after five years.
At the conclusion of his remarks, Tulloch took no questions, explaining wryly, “As a judge, I don’t answer questions on my judgments and I’m not going to set a precedent.”
However, he left behind three lawyers, his review counsels. It quickly became clear, from the questions posed — more from activists and members of racial/ethnic communities than journalists — that, while generally pleased with Tulloch’s report and recommendations, issues of dispute remain.
“Why is the report silent as to the most common form of street check, which is stopping individuals who are minding their own business, asking them all sorts of random questions, without requesting any identifying information, therefore falling outside the regulation?” Data collected yet technically outside the parameters of the regulation, with no way to measure if these no-name stops are racially biased.
Isn’t age 12 too low of a threshold for disallowing any questioning on an individual without a parent or guardian present? “From my experiences, I know of many individuals who are 13, 14, who have faced traumatizing experiences when they were randomly stopped.”
“How confident is the justice that an officer will be able to quickly go through the criteria in his or her mind to make sure they’re not infringing on anyone’s human rights?” As Tulloch has noted, some police services backed off street checks completely rather than fall afoul of the regulation.
What action plans are being instituted to ensure that youths, in particular, are knowledgeable about their rights under Regulation 58/16?
Have police been notifying civilians during stops that they have the right not to answer questions? And how do you verify they’re doing it?
If an officer doesn’t ask for identification, what triggers their right to troll for other information or advise the individual that questions need not be answered?
Why five years before historical data is destroyed, even if notification to the individual is provided (as required) and access is restricted? Why a database for information culled from street checks at all?
And what will a majority Progressive Conservative government, under the leadership of law-and-order Premier Doug Ford — who has claimed he won’t resurrect carding — do with the Tulloch report?
Shelve it, I’d bet.
Rosie DiManno is a columnist based in Toronto covering sports and current affairs. Follow her on Twitter: @rdimanno