Ontario Human Rights Commission Submission to the Ministry of Community Safety and Correctional Services
The Ontario Human Rights Commission (OHRC) welcomes the opportunity to comment on the Draft Regulation on street checks of the Ministry of Community Safety and Correctional Services (Ministry). The OHRC wholly endorses the objectives of the Draft Regulation, including ensuring that interactions are “consistent, conducted without bias or discrimination, and done in a manner that promotes public confidence and keeps our communities safe.”
Racial profiling is a clear violation of the Human Rights Code (Code); it is the primary basis for the OHRC’s comments on the Draft Regulation. Many racialized people in Ontario, especially African Canadians and Indigenous peoples, have experienced “carding” as yet another form of racial profiling.
The Draft Regulation is a step forward; it offers some helpful prohibitions, rights protections and accountability measures to prevent some racial profiling in street checks. However, it does not go far enough. Its application is limited and it does not provide sufficient guidance to prevent racial profiling in permissible street checks (i.e. when an officer is gathering information for criminal intelligence purposes, or inquiring into “suspicious activities”).
Racial profiling can and does occur in street checks when an officer is investigating a particular offence. However, the Draft Regulation’s prohibitions, protections and accountability mechanisms do not apply when police are investigating a particular offence.
The Code prohibits the police from casting their investigative net widely on racialized individuals when dealing with a vague description involving race. However, the Draft Regulation does not. It allows race to be inappropriately used in street checks when police are dealing with a vague description, like “Black man in a hoodie.”
The connection required in the Draft Regulation between an individual and a permissible street check is weak; it permits police tactics that will likely have a disproportionate impact on African Canadians, Indigenous peoples and other racialized communities. Furthermore, African Canadians are already over-represented in street checks for “suspicious activities,” which is indicative of racial profiling. This category does not sufficiently guide officer discretion to prevent racial profiling.
Because of their background and experience, many racialized Ontarians, especially youth, do not feel safe to assert their right to not answer officer questions, not provide identification or leave street checks. Although notification of the right to leave is required by the Draft Regulation, notification of these other important rights is not.
Sufficiently detailed receipts for street checks are an effective monitoring mechanism. However, the Draft Regulation does not require an officer to indicate the reason for a street check on a receipt and gives an officer broad discretion to refuse to provide a receipt.
To reduce the adverse impact of street checks, street check data collected and retained for intelligence or investigative purposes that lacks a non-discriminatory reason must be purged. However, the Draft Regulation allows police services to indefinitely retain street check data that lacks a non-discriminatory explanation.
Data collection on street checks for accountability purposes must ensure comparability and be probative of racial profiling. The Draft Regulation requires that data be collected on race, age group and sex based on officer perception but does not ensure comparability and accountability such that trends can be observed across Ontario and data may be probative of racial profiling. There needs to be greater standardization.
Detailed training on racial profiling should be required for new recruits, current officers, investigators, supervisors and leadership. The Draft Regulation only requires training for police officers who attempt to collect personal information and does not specify that training be delivered on racial profiling, nor its associated principles and issues.
Police services boards must provide consistent, effective oversight and accountability with respect to racial profiling. The Draft Regulation provides some important direction to police chiefs, yet it fails to account for the authority and responsibility of police services boards to hold their services to account for racial profiling. Boards should conduct audits of compliance with the regulation and board policy and an independent monitor should oversee compliance with the regulation.
To protect the right of Ontarians to be free from racial profiling in street checks, the OHRC urges the Ministry to make the necessary amendments to the Draft Regulation. The OHRC’s concerns with the Draft Regulation and recommendations for amendments include those set out below. For additional detail about the OHRC’s concerns and recommendations, please refer to the Joint Position. The Joint Position, co-authored by the OHRC, expresses the views of several legal groups, community advocates and academics.