How should Montreal police regulate street checks? Ontario may hold some clues

For years, visible minorities in Montreal have been stopped by police and asked for identifying information. There is no policy that defines when those street checks are justified.

A report by three independent researchers, made public last week, found that there is systemic bias in street checks and that Indigenous, black and Arab people are far more likely than white people to be stopped by police.

When the report was released, Montreal police Chief Sylvain Caron said a policy on street checks will be in effect by March 2020 but said nothing about what it might look like.

Everyone's basic rights

First, a definition: a street check is an interaction between police and civilians, outside a criminal context, that allows for the collection of identifying information.

Noa Mendelsohn Aviv, director of the equality program for the Canadian Civil Liberties Association, said rules around the practice should enhance public safety for everyone.

"If there's no law enforcement purpose, people shouldn't be stopped at all. But if they are, they need to understand that they have basic rights, including the right not to be part of that interaction and not answer any questions."

Examples from other provinces suggest that regulating street checks isn't a simple task.

Earlier this year, Nova Scotia placed a moratorium on street checks, saying it is making changes "to better protect individual liberties and maintain public safety."

The moratorium followed an independent report that found in Halifax, black people were street checked at a rate six times higher than white people.

In Ontario, a Court of Appeal justice reviewed the provincial policy on street checks over 11 months and determined the practice should be sharply curtailed.

A spokesperson for the Montreal police service didn't answer questions about how the SPVM's policy would be put together, but studying what happened in Ontario may provide some guidance.

Confusion about the rules

The CCLA was part of a group that made recommendations about Ontario's legislation in 2016, while it was in the draft phase.

Mendelsohn Aviv said aside from ensuring people are left alone, for the most part, other key tenets of any policy are transparency — making the data on street checks available to the public to scrutinize, for example — and accountability, ensuring there are disciplinary measures, independent oversight of the practice and a responsive complaints mechanism.

In 2017, Ontario Court of Appeal Justice Michael Tulloch was appointed to conduct a review of the regulation, with the aim of preventing arbitrary and random stops of citizens.

He and his team found there was a lot of confusion surrounding the regulation, and it was often misunderstood, said Christine Mainville, who served as senior counsel to Tulloch for the review.

In his report, Tulloch advised that the government tighten definitions of terms such as "identifying information" and "suspicious circumstances," and broaden protections during vehicle stops.

An officer also must be able to articulate the reason why a person is being stopped, the report said — and race cannot be part of that reason.

Mainville said the goal isn't to prevent the police from interacting with people, but when it comes to obtaining identifying information, there is "an even greater potential harm, because their name ends up in some police database over which they have no control and which can have serious consequences … in the future."

Tulloch was appointed by Ontario's former Liberal government, which was ousted by the Progressive Conservatives in 2018. The Ford government hasn't yet implemented his recommendations.

Policy should help eliminate carding

The authors of Montreal's report, sociologists Victor Armony and Mariam Hassaoui and criminologist Massimiliano Mulone, made suggestions of their own.

They say the policy should include:

• A standardized definition of what a street check is and reasons why that check should or should not be recorded in the system.
• The creation of a system for registering each police check.
• Clear instructions on how to register the perceived race of each person with whom they come into contact.
• A way to follow up on the volume of checks, to identify abnormal or problematic trends.

Léo Fugazza, a Montreal criminal defence lawyer and member of the Association des juristes progressistes, a group of lawyers, law students and others working towards social justice, said despite the fact that police officers defend the practice, he doesn't believe it works.

"It has an adverse effect — it really creates police distrust, it creates resentment in the affected communities," Fugazza said. "The goal of the policy should not be to encourage carding, but to eliminate it."

Ideally, the city would implement the policy, not the SPVM, he said. He believes that would lead to better oversight and better civilian input.

Fugazza said the March 2020 deadline seems soon.

"I think we should stay optimistic in the hope that this time, the policy will be taken seriously."