Carding debate misleading

Oct 8, 2015 By Matthew Friedberg
Toronto criminal lawyer Matthew Friedberg says he’s seeing fewer complaints about "carding" come from accused persons before the courts and as a result, he suspects police aren’t engaging in the controversial street checks as often as they once did.

“Anecdotally, as far as I know, police aren’t really carding much anymore perhaps because officers are constrained as to how to execute carding," he tells AdvocateDaily.com. "I think there is also a fair bit of confusion about it at the moment. As a result, the police are simply choosing not to do it and I don’t think it comes up much in court any longer.”

Friedberg says it’s ironic that the carding issue has received so much press in recent months because it is his opinion that police are no longer employing the tactic the way they had been before the issue became a topic of public debate.

Indeed, there has been a great deal of publicity surrounding the police street checks commonly called carding. Most recently, Ontario’s former ombudsman described the practice as “wrong and illegal.”

Andre Marin, whose term ended just weeks ago, spoke out against carding when he was still ombudsman. He called the practice “a form of arbitrary detention'' that contravenes the Charter of Rights and Freedoms and said there's no evidence it's an effective policing tool, reports the Canadian Press.

Marin urged police forces to require provincewide training for officers, as well as impose strict limits on the use of street checks and the retention of data gathered, says the article.

The provincial government in Ontario has said it will regulate it, but not ban police from carding individuals.

The Ontario Human Rights Commission has also weighed in on the matter, saying that police services should limit officer discretion to stop and question people, as well as require officers to inform those they stop about their right to leave and not answer questions; it has also called for police to restrict how officers collect race-based data to identify bias and provide transparency through receipts, reports the wire service.

Friedberg agrees carding is illegal when it violates a person’s rights, but says it’s a not really a current issue in the trial courts at the moment. Ever since carding attracted significant attention and criticism, its practice seems to have decreased although he does not have any statistics to corroborate that, only what he and his colleagues have observed.

He says it’s been quite some time since he has had a case come before the courts that involved carding. He says it seems as though the police are simply not engaging in the practice as they once did.

“Whenever the carding issue rears its head, people get upset about it and there’s a lot of pushback from the community, which I understand,” he says. “And the more pushback, the less, I believe, it’s being done on the street.”

Friedberg says carding proved to be a rich source of police intelligence and a great assistance in the laying of criminal charges.

He notes there has been a reduction in the number of criminal charges coming before the courts over the past five years or so and he says the decline in the practice of carding is one of a multitude of factors, including a reduction in crime, that have contributed to that trend.

“Anecdotally speaking, I don’t think police are carding any longer. I can only speculate as to why," he says.