Who will stop police carding?

Then the police arrive and the next thing you know you’re being threatened with arrest and told to put your hands behind your back because you dared question why the officer asked you to produce your identification. If you are a young black or Indigenous man in this city, or a First Nations woman, you may not have to imagine such a scenario because there’s a pretty good chance it’s happened to you.

Cell phone video of an Edmonton Police Service (EPS) officer’s interaction with a group of young black men at a south side gym last month offered a rare close-up look at the controversial practice of carding – or street checks, as the police prefer to call it – and raises troubling questions about whether EPS is violating citizens’ Charter rights even as both the Edmonton Police Commission and the provincial justice department is reviewing the practice.

On the video, an officer can be seen engaging with a group of young men who are waiting around for a manager to give them a refund. The officer demands the men produce identification and when they question why, they are all threatened with arrest. When one of the young men says he doesn’t feel comfortable giving the officer his identification, the officer responds (at 3:07 of the video clip), “You don’t feel comfortable? How about I tell you right now that you’re under arrest for obstruction? Turn around and put your hands behind your back.”

The incident – which arose out of a now-resolved commercial dispute between a business and customers (neither of which wished to be quoted on the record for this story) resulted in no arrests. No complaint that a crime had been committed was ever filed.

In light of this, we asked Amanda Hart-Dowhun from Engel Law to comment about the officer’s actions. Hart-Dowhun, whose specialties include criminal defence, Charter litigation, human rights issues, and police complaints, told us that the officer’s conduct does not appear to be appropriate under the circumstances.

“While there are some occasions when an individual is required by law to provide identification,” she said, “It does not appear that the individuals depicted in the video would be required to do so as there is no lawful basis for an arrest and minimal prior investigation to justify them as being legitimate suspects.”

We asked the Edmonton Police Service if they felt the officer acted appropriately. “Based upon the information provided by both parties and a review of the incident, the EPS believes the officers’ actions were appropriate,” responded EPS communications advisor Carolin Maran.

Asked if it was appropriate for police officers to be threatening people not suspected of any crime with arrest because they do not produce their identification upon demand, Maran stated that the question would be more appropriately answered by Alberta Justice.

After more than two years of denial from both the police service and the provincial justice minister, carding has become a bit of a political hot potato.

A Brief History of Carding

While anybody who is acquainted with First Nations, Metis and Indigenous people or people of colour has heard stories about people being stopped by police for “driving while black” or “walking while Aboriginal”, concerns about carding being racially motivated were first raised in the mainstream media by the Toronto Star in 2012. The investigative series “Known to Police” found that blacks, who made up just 8.3 percent of Toronto’s population, accounted for 25 percent of citizens carded by police between 2008 and mid-2011.

The matter reappeared on the national media’s radar when Toronto journalist Desmond Cole wrote about his experience being carded over 50 times for Toronto Life magazine in April 2015. Despite that police force’s repeated insistence that the practice was not racially driven, statistics failed to support that assertion. Numerous media reports and continued public outcry had Toronto Mayor John Tory calling for a ban to the practice that same summer.

Desmond Cole’s 2015 Toronto Life Story

“A Street Check Report may … be submitted as a consequence of a casual conversation with a citizen where the citizen is voluntarily providing information and a police file is not required,” an EPS spokesperson said in an e-mail at the time. “The citizen is not under detention and can walk away at any time.”

CBC reporter Andrea Huncar picked up the story in September 2015 reporting that the EPS provided figures showing that officers carded 105,306 individuals between 2011 and 2014, an average of over 26,000 people per year. Anecdotal evidence in her reporting suggested that the checks might be disproportionately targeting First Nations, Indigenous and Metis peoples. Acting Staff Sgt. Brent Dahlseide told Huncar that the stops were not racially motivated. He also stated that the EPS did not break down the statistics based on race or ethnicity. Huncar’s report triggered a number of reactions.

Justice Minister Kathleen Ganley image source

While Justice Minister Kathleen Ganley initially asserted that a review of carding was unnecessary because no formal complaints had been made, the very next day CBC reported that the minister was in contact with EPS Chief Rod Knecht.

“Mostly I just want to know more information (about) what is going on and whether we have statistics on how this is being used, what the outcomes are,” Ganley told Huncar before speaking with Knecht. She added that any formal review of the practice would be premature because “she [was] unaware of any data suggesting there [was] a problem.”

D’Arcy DePoe, who has practiced criminal law in Alberta since 1981 and whose experience included a stint as the president of the Criminal Trial Lawyers’ Association, expressed “astonishment” at the figures. “We have to know what these data banks are all about,” he told the CBC. “Let’s have some facts. Let’s see what they’re collecting and let’s see how they use it. And let’s see some data on just how effective it is.”

Concerns about the collection of data also caught the eye of the Office of the Information and Privacy Commissioner which, according to spokesperson Scott Sibbald, reached out to the EPS “to ensure they are upholding the access and privacy rights of individuals.”

Bashir Mohamed, photo source

Bashir Mohamed, policing co-chairman for Black Lives Matter–Edmonton (BLM), has questioned whether the police are sharing information obtained through carding with external agencies like the Canadian Security Intelligence Service or the Canada Border Services Agency. The EPS has, to date, been unable to or unwilling to respond to those particular concerns.

At the end of October 2015, the government of Ontario announced that it would introduce province-wide restrictions on the practice of police carding. This would involve banning random and arbitrary police stops, set limits on how and when police could question and document citizens, and include a provision that the police had to inform citizens that co-operation was voluntary. The new rules (which came into force January 2017) do not apply during a traffic stop, an arrest or detention, while officers are executing a warrant or if they are investigating a specific crime.

That same week, EPS Chief Rod Knecht held a press conference to defend the practice and affirm that the force would be making no changes to its policy. Despite the fact the police force had spent the prior six weeks claiming carding was not an issue, Knecht told reporters present that an internal review had been conducted. That review, they said, concluded there was no issue.

This “nothing to see here, folks” narrative aligned with that of Justice Minister Kathleen Ganley who had told the CBC two days earlier, “Street checks are just police having conversations with people in the community and police are part of the community.” Ganley reiterated that there had been no complaints, no review was required, and Alberta would not be following Ontario’s lead in banning the practice.

Black Lives Matter–Edmonton has long challenged the idea that a lack of formal complaints is evidence that there isn’t a problem. Asked why people like the young men depicted in the video taken at the gym might be reluctant to file complaints, Mohamed answers the question with a question: “Would you trust a system where the investigating officer is wearing the same uniform as the officer who harassed you?”

DePoe told CBC at the time that he was troubled by some of Ganley’s remarks. “I’m a little concerned about the comment that street checks are just police having conversations with people in the community, and this is somehow an aspect of community policing,” he said. “Police aren’t coming up and introducing themselves. They’re coming up to people and asking people what they’re doing, what they’re up to, and asking for and recording their names and identification information.

In November 2016, Progressive Conservative MLA Mike Ellis, a former police officer, took up the cause in the Alberta Legislature.

Ellis called carding an “unlawful practice” and pointed out that it violates individuals’ rights under section 9 of the Canadian Charter of Rights and Freedoms, that carding seriously compromises the privacy of their personal information and disproportionately targets members of vulnerable communities. Minister Ganley responded that she was working with the Alberta Association of Chiefs of Police to develop guidelines. When Ellis brought it up again the following month, she essentially repeated her answer but added this time that concerns had been brought forward by some community groups and there would be consultation.

Dan Laville, the director of communications and public engagement for Alberta Justice and the Solicitor General advised us in an e-mail in early December that what had been described by the ministry as a “working group” consisted mostly of discussions by e-mail and the “group” met just once.

“However, it is important to note that both the Minister of Justice and Solicitor General as well as the Director of Law Enforcement have met with Alberta’s Chiefs of Police to discuss the need for a consistent policy regarding street checks across the province,” Laville wrote.

Despite Ganley’s response in the legislature in December, an exclusive report filed by the CBC’s Huncar in November 2016 indicated that the review was complete and awaiting approval of the minister and police services. Ganley advised her that the next step would be “more focused feedback from community groups”.

In that piece, Huncar reported that the Calgary Police Service had proactively moved on the issue. In October of 2016, that force established a civilian unit that evaluates each street check is conducted in a lawful and unbiased manner. “I think in society today there is a level of  transparency and accountability that is expected of public agencies and law enforcement is no different,” deputy police chief Sat Parhar told Huncar. “So when we’re doing these things I think it’s important first of all, the public know what we’re doing. And I also think that privacy is really important so we should be accountable for why we’re doing the business we’re doing.” The Edmonton Police Service declined further comment.

Police Stats Expose Racial Profiling

EPS data showing who gets carded in Edmonton. (click to expand) image source

In June of this year, Black Lives Matter released the results of a Freedom of Information and Privacy request they had submitted to the EPS. At a news conference, Mohamed revealed statistics that indicated black people were almost five times more likely to be stopped than white people and Aboriginal people six times more likely. First Nations, Indigenous and Metis women were ten times more likely to be carded than white women.

“Our research also revealed that street check data is collected in a way that further criminalizes affected citizens by feeding their personal information into law enforcement databases,” said Mohamed, while calling for a ban on the practice and the destruction of the data collected.

Indigenous women are the most likely females to be carded. (click to expand) image source

Also at the news conference was Rachelle Venne, CEO of the Institute for the Advancement of Aboriginal Women. Venne raised concerns that the practice fostered negative relationships with law enforcement.

“Carding … does not build relationships, rather the contrary,” she said. “It reinforces the attitude that Aboriginal women are not worthy of the human rights that most Canadians enjoy.”

As detailed in stories in June, EPS carded more than 20,000 people in 2016, continuing the trend of more than 60 “street checks” every single day. 2017 stats were trending down, but still headed toward nearly 20,000 checks again.

Both of their comments echoed the findings of the Doob-Gartner Report which was released in early 2017. The Toronto Police Service Board had retained criminologists Anthony Doob and Rosemary Gartner to research the effectiveness of carding. Their analysis concluded that evidence of any benefit is “substantially outweighed by convincing evidence of the harm of such practices both to the person subject to them and to the long term and overall relationship of the police to the community.”

“One cannot conclude that something is effective just because assertions are made that it is,” they wrote. “It is quite clear to us that it is easy to exaggerate the usefulness of these stops, and hard to find data that supports the usefulness of continuing to carry them out.”

Following that June BLM/IAAW press conference, the Minister of Justice issued a written statement that indicated the practice was still under review. “All Albertans deserve to feel safe and respected in their communities. Under Alberta’s policing standards, police agencies are required to provide impartial policing without regard to ethnicity, gender, sexual orientation, age, belief or social standing,” the statement said.

It is really unclear how much of a priority the matter has been for the ministry. The “next step” that Ganley promised in November 2016 didn’t occur until August 24, 2017 when the department announcement a survey would be sent to about 100 organizations across the province. Alberta Justice spokesperson Laville advised that the response was poor.

“As we received only 14 responses by the original deadline in October, we’ve extended the consultation period until December 15 to give more organizations more time to respond,” he wrote. He offered no explanation as to why it took nine months to begin the community consultation and did not respond when asked how ordinary citizens could provide input to the review.

Laville said that he was unable to provide a timeline for completion of the review but asserted that his department’s initiatives “make Alberta the second province in the country to formally respond to concerns about street checks”. This statement will only be true once they have actually formally responded. To date, they have not.

In response to our questions, Alberta Justice repeated its statement on police carding, as originally seen in this June 2017 story from CBC.

Asked if it was appropriate for police officers to be threatening people not suspected of any crime with arrest because they do not produce their identification upon demand, Laville responded as follows: “All Albertans deserve to feel safe and respected in their communities. Under Alberta’s policing standards, police services are required to provide impartial policing without regard to ethnicity, gender, sexual orientation, age, belief or social standing.”

If that statement sounds vaguely familiar, it’s because it’s the exact same statement – word for word – issued on behalf of Minister Ganley following the BLM/IAAW press conference in June.

Laville added, “Any Albertan who is not satisfied with the way police have treated them is encouraged to file a complaint with their local police service, or civilian oversight body — the local police commission in the case of municipal police, or the Civilian Review and Complaints Commission in communities policed by the RCMP.”

A Human Rights Issue

Alberta Liberal Leader David Khan has been vocal in his opposition to the practice of carding and wants to see the Alberta Human Rights Commission empowered to investigate the matter so citizens aren’t forced to make complaints.

After data was released in January 2017 that indicated that black people in Halifax were three times more likely to be stopped by police than white people, the Nova Scotia Human Rights Commission took the initiative to start discussions with the police complaints commissioner, the Serious Incident Response Team (SIRT), the Halifax Regional Police, and representatives from the African Nova Scotian community. Khan would like to see amending legislation here in Alberta that would allow our Human Rights Commission to launch similar investigations in the absence of a formal complaint.

“The practice of random ‘carding’ of minorities by police is unacceptable,” Khan said in a statement last July. “We must give the Human Rights Commission the ability to investigate and end practices that are found to be violating citizens’ fundamental rights.”

Alberta Liberal leader David Kahn. image source

Taking a break from campaigning as a candidate in the Calgary-Lougheed by-election, Khan explained in a telephone interview that empowering the HRC to investigate systemic problems like carding would be a step in the right direction. He echoed comments from Bashir Mohamed about why people are reluctant to file formal complaints with the police service. “People don’t want to complain because they are afraid and don’t want to put themselves on the front line,” he said.

“Giving more power and more money to the human rights commission would help address that problem.”

The Edmonton Police Commission, appointed by City Council and charged with oversight of the EPS, announced in July that it would undertake a third party review of street checks. Commission Chair Cathy Palmer told media at the time that they hoped the review could be completed as early as December. That turned out to be optimistic; a statement posted on the commission’s website on December 1st indicates the completion date has been pushed back to March 31, 2018.

Led by Curt Griffiths, a professor in the School of Criminology at Simon Fraser University and coordinator of that school’s Police Studies Program, the project will involve interviews and focus groups “with persons from the various communities in Edmonton” and members of the EPS.

Since his highly critical remarks about carding, D’arcy Depoe has been appointed as a judge in the provincial criminal court in Edmonton and it will be interesting to see if his well-publicized views about carding inform his decisions from the bench, especially since the practice has now been used at least once as grounds for appeal of a conviction.

This past September, lawyer Deborah Hatch argued in an appeal in the Court of Queen’s Bench that her Indigenous client’s conviction on two counts of drug possession be overturned because of police carding based on racial profiling. As reported by the CBC’s Huncar, the original judge in the lower Provincial Court had acknowledged that the individual’s Charter rights had been breached by the arresting officer; his denial of the defense’s application for a stay of proceedings forms the basis of the appeal. The justice reserved her decision in the case.

In the meantime, the Office of the Information and Privacy Commissioner of Alberta outlined a number of concerns about carding in a letter to the Director, Policing Standards and Audits which is taking the lead on the provincial public consultations. Among a variety of other issues, Jill Clayton questioned how the information is being used if individuals are not detained or under arrest.

“Is the use consistent with the purpose for which it was collected?” she wrote. “If, for example, personal information is collected for a community service purpose, how do police services limit the use of that information so that it is not later used for a secondary law enforcement purpose?”

As all of this plays out, we asked lawyer Amanda Hart-Dowhun what people should do if they find themselves in a situation such as the one the young men in the gym experienced. She recommends filing a complaint under the Police Act. “The Edmonton Police Service has a helpful guide to doing that on their website,” she said. “It is a relatively user-friendly process, in my experience.”

BLM-Edmonton’s Mohamed suggests recording interactions with police, if it is safe to do so, and filing a complaint if the person feels comfortable doing it. “EPS may not have body cams but most of us have them in our pockets,” he said.

“Aside from that, do what the officer says. They have a gun. You don’t.”

Written by Mimi Williams. Main art by Sally Poulsen.

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