Carding raises two legal issues, not one

The Caribbean Camera is surprised and dismayed to discover that the adults who were / are members of the Toronto Police Service and especially the Toronto Police Service Board failed to address and publicly comment on both of the two distinct legal issues that arose in the interaction between both entities on the subject of police carding policy.

Like many members of the public, The Camera has shifted its focus from the  starting point that carding is discriminatory, unfair and unjust to the more fundamental issue that for those very reasons it is illegal, a clear violation of the charter rights guaranteed under our constitutional system.

In doing so, we did not notice that another distinct legal issue was at the heart of the conflict between the Police Service at the time headed by Bill Blair as chief and the TPS Board up till recently headed by Dr. Aluk Mukherjee. Thanks to the work of the staff of the Toronto Star, we are now aware that former chief Blair had officially put forward to the board in 2014 that the board’s then carding policy and policy instructions to the chief were illegal because section 31(4) of the Police Service Act “stipulates the board cannot direct the chief with respect to specific operations or the day-to-day operation of the force”.

Blair had also argued the legal requirement of full consultation with the police service had not been met.

In direct response to the chief’s reported interpretation of the act but in the context of the chaotic security circumstances of the G20 Summit in 2010, the Star cites a contrary legal opinion from retired Judge John Morden: “Section 31(4) of the act is intended to prevent direct board interference in the actual policing function but not to prevent the board from making decisions governing the structure and environment in which those policing functions occur.”

More specifically, the Star went further and sought documentary evidence of The Camera’s main concern, that is, the illegality of carding itself. However, that newspaper’s freedom of information request to have access to legal opinions the police service relied on to declare carding a legal practice was unsuccessful.

Full details of the Star’s work on these two legal issues including the names of the three jurists who provided the legal opinions may be found on pages GT1 and GT7 of the Star’s edition of May04, 2015.

Here at The Camera, we are neither amused nor ready to throw up our hands in helpless despair. We cannot expect the board and police service to make available the relevant documents and information. They have shown themselves to be hopeless in their transparency and public accountability practices. The current mayor’s role in all of this is cause for even more despair.

Accordingly, The Caribbean Camera calls upon Premier Kathleen Wynne and her provincial government to put an end to this shameful political circus: provide at least one legal definition of carding, otherwise known as police street checks; explain the legal arguments for deeming this practice illegal; and enact the unambiguous legislation required to formally outlaw it.