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Ontario announces new rules on carding

By David Smith

Last week the province announced an education campaign to ensure citizens are aware of their rights under the new street checks (i.e. carding) regulations that took effect on Jan. 1, 2017.

New guidelines for police conducting street checks

Under the new rules, in order to ask for identification, the police must:

  • have a reason, which cannot be:
    • based on race
    • arbitrary (not meaningful)
    • only because you are in a high-crime area
    • because you refused to answer a question or walked away
  • tell you why they want your identifying information
  • tell you that you can refuse to give identifying information
  • offer you a receipt – even if you refuse to share information – that includes:
    • the officer’s name
    • the officer’s badge number
    • how to contact the Office of the Independent Police Review Director, which handles complaints about police in Ontario
    • who to contact to access personal information about you that the police service has on file
  • keep detailed records of their interaction with you – even if you refuse to share information

Unfortunately, this announcement coincided with Ontario Court Justice Sandra Bacchus acquitting Marcel Blackburn of refusing to provide a breath sample in the wake of police conduct she described as “aggressive,” “verbally abusive,” and “Kafkaesque.”

Educating citizens about civil liberties is futile if the police are unwilling to respect them. Exercising your rights should never be the foundation of criminal charges. Unfortunately, that is precisely what happened to Mr. Blackburn.

Police “willfully blind to the parameters of [their] legitimate police powers” in recent incident

Blackburn was pulled over in Dec. 2015 around 1 a.m. on Reggae Ln., near Eglinton Ave. W. and Oakwood Ave., after he was apparently observed by police making a right turn on a red light without stopping. The police interaction that followed was captured, on video, with audio, except for what Bacchus called “key seconds” when the police officers unjustifiably turned off their microphones. Blackburn pulled over into the laneway. Bacchus found that the “detention of the defendant which began lawfully, quickly became unlawful.” Almost immediately after pulling over into the laneway, Blackburn was subjected to Officer Manheep Virk banging on his car and demanding he exit his car, while Officer Memhnet Gucbilmez threatened to drag him out of his vehicle for not cooperating. Blackburn had told police his driver's window was broken but had rolled down his passenger and rear drivers side windows. He had also agreed to get out of his car until he became frightened by the police aggression, stating he would deal with the officer who responded to the call for backup. Shortly after that backup arrived, the officers switched off their microphones to speak amongst themselves. At that point, the police determined they had reasonable grounds to demand a breath sample. (Bacchus disagreed.)

Throughout the interaction, Blackburn remained calm and respectful. He volunteered his documents without being asked. Not only did Virk refuse to take them, but his motives were also questioned. He was accused of fidgeting in a suspicious manner. He reminded the officers that if he was pulled over for failing to stop at a red light, they should write him a ticket. Bacchus agreed. She found that traffic stop was a pretext to investigate Blackburn’s presence in an alley they believed to be a high crime area.

Bacchus’s found that although they were experienced, the officers were “willfully blind to the parameters of the legitimate police powers they had in this case.” This is troubling in the context of individuals exercising their rights in police interactions. Rights are meaningless if the police are going to ignore them. Blackburn may have beat his charges, but he should never have been charged in the first place. This is no win. Instead of a traffic ticket, he was charged with criminal offences. A Crown prosecutor, someone who is legally educated, endorsed this police misconduct and took the matter to trial. Quite often police overreach doesn’t lead to charges. There is a complaints process, but most people don’t bother. After getting over their initial anger, they move on with their lives. Their stories simply get piled upon the numerous anecdotes that leads to the mistrust of police.

Some commentary

Whenever police conduct is criticized, it is very quickly dismissed as the actions of a “few bad apples.” That’s fair. Police officers are generally decent, hardworking people working to make our communities safer. It is important, however, to also remember the second part of that cliché, i.e. the bad apples spoil the barrel.

What is troubling about Blackburn’s case is it demonstrates how easily the barrel rots. None of the officers reigned in Virk. In fact, the officer who responded to the call for back up joined in. Microphones were turned off and “grounds” to demand a breath sample were manufactured. By the time this matter got to court, the officers’ testimony was less than honest.

It is difficult to entirely fault front line officers for ignoring – or being unaware of – the scope of their power when the chief of police publically overstates the powers of police.  In December, Mark Saunders was quoted in the Toronto Star undermining the right to silence:

If my officers are stopping someone because they’ve got the grounds under the Criminal Code, and if that person keeps hearing the narrative you don’t have to talk to the officers any time . . . there’s a fallacy to it.

You could not talk, but then what you do is you give the officer the opportunity to now apprehend you under the Criminal Code, arrest you, take you into the station to further the investigation, so it’s not as cut and dry as people think.

The fallacy is in the chief’s comments. Aside from obligations to identify yourself upon arrest or when you’re pulled over driving, there is no obligation to speak to police. Exercising your right to silence does not justify an arrest.

Whether it’s bad apples spoiling the barrel or a fish rotting from the head, it stinks.

Read More at Toronto Criminal Law Blog

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