Tuesday, August 11, 2015

In a commentary in the Hamilton Spectator, JD student Riaz Sayani-Mulji argues that Hamilton's police need to address the issue of carding and racial profiling ("Hamilton police carding policies target vulnerable minorities," August 10, 2015).

Read the full commentary on the Hamilton Spectator website, or below.


Hamilton police carding policies target vulnerable minorities

By Riaz Sayani-Mulji

August 10, 2015

Recently the Hamilton Police Service admitted that they do indeed track race-based statistics. In doing so, they've given us proof that racialized citizens, especially black people and aboriginals in this city, are disproportionately carded.

Finally, the veil has been lifted on the Hamilton Police Service's racist policing. For years, they told those of us who submitted Freedom of Information requests and who met with senior management that they don't record race-based statistics. "We don't racially profile," were their words. They were defensive when we used the "r-word", and told us that they were "colour-blind."

For too long, both the Hamilton Police Service and the Hamilton Police Services Board ignored the stories we shared, of racialized young people in our community being stopped and searched without cause, of being ticketed for driving or biking while black, or their stories of these interactions escalating into assault by ACTION officers. The ACTION team is a provincially-funded unit arguably tasked with carding, racially profiling and harassing historically marginalized communities. While these are anecdotes of police brutality, not proven in a court of law, it is evident that carding poses the risk for extrajudicial measures such as physical assaults, trumped up or unwarranted charges and ongoing harassment by the police. See, for example, Justice Frederick Myers' finding of facts in the May 2015 case of Sudanese refugee Mutaz Elmardy against Toronto police, where a carding interaction led to him being punched twice in the face by a police officer. Elmardy was subsequently awarded $27,000 by the court.

While Justice Myers did not rule on this issue, it is clear that carding, or street checks, violates the Charter of Rights and Freedoms and the Human Rights Code. Policing powers in Canada do not provide for the ability to stop people without cause and coerce them to produce identification. Section 9 of the Charter protects against exactly that — arbitrary detention. And given the litigation commenced by the Law Union of Ontario, a court will no doubt make a ruling confirming this in due time.

It must be noted that this practice is not just arbitrary in the literal sense of the word — the police are targeting those that they feel possess criminality. The racist myths that certain communities are more likely to engage in criminal activity is part of it — but it is also no secret that parts of Hamilton are over-policed compared to others. You will not find 24-hour surveillance or an ACTION-type squad ticketing everything that moves on the West Mountain. Given the city's interest in "revitalizing" or gentrifying the downtown core, it is no surprise that the police are targeting our city's poorest people, and especially our poorest people of colour. Just like in Toronto, black people, Aboriginals and, to a lesser extent brown people, are disproportionately stopped and carded. As such, it is very likely that carding is a violation of the equality rights enshrined in Section 15 of the Charter and the Human Rights Code.

Hamilton police must also be transparent in explaining what the information collected in these "street checks" is used for. In Toronto, there is ample evidence that being "known to police" spills over into employer reference checks, even for those without a criminal record.

Essentially, carding doesn't end with the injustice of being detained and harassed by police officers for no reason. Being carded can have ramifications years down the line. Yet, there is no evidence that carding or maintaining this massive database of individuals' personal information leads to better policing outcomes and it is clearly sowing further seeds of police distrust in many historically marginalized communities.

Even if carding were constitutionally sound under the Charter, or did not represent a violation of the Human Rights Code, it is a practice that needs to end. As someone who has experienced carding personally, I can attest to how degrading and humiliating the experience is. How angering it is to be stopped, interrogated and asked to produce identification simply because of the colour of your skin or your perceived socio-economic class.

Going forward, the Hamilton Police Service and the Hamilton Police Services Board must engage in proactive measures to address carding and other forms of racial profiling. This would include tracking the race of subjects in all contacts with the police through Highway Traffic Act stops, under the Provincial Offences Act, and other regulatory and quasi-criminal regimes. The Hamilton Police Services Board must implement a policy governing the narrow circumstances when officers can initiate an interaction with a citizen. Such a policy should include a directive that officers provide a proactive warning that citizens are under no obligation to speak with them, a provision that officers issue receipts to subjects of carding documenting an articulable reason for the stop, and strict protections for the privacy of subjects' data to prevent it from entering police databases.

Denying the reality of carding and racial profiling is no longer an option for the Hamilton Police Service or the Hamilton Police Services Board. Unless clear evidence emerges in the near future that shows steps are being taken to address illegal discrimination, harassment and biased-policing, the leadership of the city can expect litigation and further protests from community groups standing out against this racist practice. Simply put, it's time for Chief of Police Glenn De Caire and Mayor Fred Eisenberger to begin taking the necessary action to end this abhorrent, racist practice once and for all.