Why can't Ontario's police boards make police stop carding?

Two Ontario police services recently thwarted attempts by their police boards to have a say over how the controversial practice of carding or street checks is carried out in their cities. 

The showdowns raise questions of police accountability and civilian checks on police power, especially connected to practices that raise issues of discrimination and civil rights.

Here's what happened in Hamilton and Peel Region last week:

• A motion from Hamilton's board to suspend the practice while the province reviews it was stopped by the police service's lawyer, who said the motion would encroach on day-to-day operations, which are the purview of the chief.
• Shortly thereafter, Chief Glenn De Caire refused to implement an interim policy governing the practice, adopted from the Toronto Police Services Board.
• In Peel, the board passed a recommendation that the chief stop carding, but the chief said she will not follow their recommendation on the same operations grounds, the Toronto Star reported.

"[The chiefs] have managed to scare these boards into believing they really can't direct the police to do anything," said Howard Morton, a former prosecutor, and head of the Law Union of Ontario. "The danger in that is there's really no oversight of the police."

Somehow this myth about how the boards can't say anything about operations came into being.- Fred Kaustinen,  Ontario Association of Police Services Boards

The debate centres around what ability the boards have to influence policing "operations." It has been a major focus at a meeting of the Ontario Association of Police Services Boards this week.

"'Operations' is one of the most mis-defined words in policing," said Fred Kaustinen, the association's executive director. "If the only policies that the board came up with were administrative it would be irrelevant to the community. Somehow this myth about how the boards can't say anything about operations came into being."

But, unsurprisingly, the chiefs don't see it that way.

• READ MORE: Carding 'wrong, illegal,' former Ontario ombudsman concludes
• READ MORE: Police board won't ask chief to suspend carding while province drafts new rules​

"The board shall not direct the chief of police," said Ontario Association of Chiefs of Police director Ron Bain. "What the board is trying to do is direct day-to-day operations," he said. "That's the issue and I'm sure that's what the ministry is looking at."

Finding the line

In Ontario, police boards are made up of elected officials and civilian members, and are charged with the responsibility of oversight. The Police Services Act outlines how the boards set policies for the police and police come up with "operations" from those policies. The boards are to deal with the "what" while the police chiefs manage the "how" of policing.

The line isn't always easy to spot.

Reviewing the G20 summit, a retired judge blasted the Toronto board for its apparent lack of oversight. Toronto's board also got into a dispute with former Chief Bill Blair over a policy it wanted to pass regulating the carding practice. 

On the operations-policy line, Brent Ross, spokesman for the Ministry of Community Safety and Correctional Services, didn't add clarity, though the ministry is planning to update the Police Services Act. 

At a minimum carding is either pure policy or operations informed by policy.- Howard Morton,  head of the Law Union of Ontario

"It is up to individual police services boards to make a determination regarding these matters," he said.

Jagmeet Singh, Ontario NDP Attorney General Critic said the police boards should carry more sway with the police.

"If we have police boards and they provide recommendations, by and large, the police force should follow those recommendations," Singh said. "Any time we see that breaking down, the biggest loss is the loss of public trust, that maybe there is no accountability."

But the province has the duty to better define that relationship and not leave it up to individual boards to make the call on carding, he said.

"The provincial government has the mandate, the authority, to regulate this." 

Don't tell me 'left, right, left right'

Street checks are interactions between police officers and people on the street who may not have done anything wrong. Sometimes the officers will ask for ID and record information about the person on a form that goes into the police database forever. The practice became known colloquially in Toronto as "carding." 

Police across the province want to their power to do those street checks. But community members in Hamilton, in Mississauga and especially in Toronto, where this controversy has continued for years, have raised constitutional concerns about privacy and about the room the practice leaves for racial profiling. 

The provincial Ministry of Community Safety and Correctional Services is reviewing the practice and plans to issue new regulations this fall. 

In the meantime, Hamilton Coun. Terry Whitehead's proposal to suspend doing street checks until new rules come out from the province was rebuked by the service's attorney, Marco Visentini, who opined that the motion would tread on the chief's control of operations. A motion to get another legal opinion for the board's rights didn't get enough votes.

On Twitter, the former head of the Toronto Police Services Board, Alok Mukherjee, called Visentini's contention "nonsense." 

Coun. Lloyd Ferguson, chair of the Hamilton Police Services Board, said he didn't vote for the independent opinion because it costs money and he wanted to find consensus with the chief rather than fight him.

He said when the topic came up at a meeting of the Ontario Association of Police Services Boards Wednesday, debate went on for four hours "trying to find where that line in the sand is," he said.

"Rather than test that line, I thought it'd be better to get consensus," Ferguson said.

'Don't let this stop you from doing your job'

Kaustinen thinks boards can and should outline parameters on policing as representatives of the community.

"Police have these extraordinary powers in our communities not because the law enables but because the community has consented to it," Kaustinen said.

The board's job, he said, is to set strategic direction and to require, perhaps by asking for regular reports showing evidence of compliance, that the organization is following that direction. 

"Give them a target and some limits — you don't tell me 'left, right, left, right, left," he said. "'They could've said, 'Don't elicit information without a clear purpose.'"

Morton, from the Law Union, agrees the boards should have some say.  

"At a minimum carding is either pure policy or operations informed by policy," Morton said. "(Police boards) are the guardians of the Charter of rights. Don't let this 'operational' issue stop you from doing your job."