REPORT OF THE

Independent
Street Checks
Review
The Honourable Michael H. Tulloch

Queen’s Printer for Ontario

The Honourable Michael H. Tulloch is a judge of the Court of Appeal for Ontario.
© Queen’s Printer for Ontario, 2018
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Available at www.ontario.ca/page/ministry-community-safety-and-correctional-services
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 Table of Contents

Acknowledgements................................................................................................................... v
Letter to the Minister of Community Safety and Correctional Services.................................vii
Letter to Participants and Stakeholders................................................................................... ix
Definitions................................................................................................................................ xi

Part I Executive Summary........................................................................... 1

Executive Summary................................................................................................... 3

Part II Background......................................................................................23
Chapter 1 Introduction.......................................................................................... 25
Chapter 2 Street Checks........................................................................................ 33
Chapter 3 The Independent Review: Mandate and Methodology......................... 51

Part III The Context of the Independent Review..........................................59

Chapter 4 Policing: Powers and Limits.................................................................. 61

Part IV Collecting and Managing Identifying Information - Findings and

Recommendations.......................................................................................79
Chapter 5 Application and Interpretation of the Regulation................................. 81
Chapter 6 Prohibition on the Collection of Certain Information........................ 109
Chapter 7 Duties Relating to Collection of Information..................................... 119
Chapter 8 Inclusion of Collected Information in Databases................................ 141

Part V Operational, Policy and Procedural Challenges - Findings and

Recommendations.....................................................................................153
Chapter 9 Training of Police and Public Education........................................... 155
Chapter 10 Performance Targets, Policies and Procedures................................... 181
Chapter 11 Reports and Compliance................................................................... 191
Chapter 12 Other Policy and Procedural Recommendations to Improve the
Implementation of the Regulation........................................................................ 207
Part VI Appendices...................................................................................221
Appendix A Recommendations........................................................................... 223
Appendix B Order in Council and Terms of Reference....................................... 239
Appendix C O. Reg 58/16: Collection of Identifying Information in Certain
Circumstances – Prohibitions and Duties............................................................. 247
Appendix D Infographic...................................................................................... 261
Appendix E Civilian Survey Results.................................................................... 263
Notes..................................................................................................................... 277
 Acknowledgements

At the outset, I want to highlight the con- during our extensive police, community,
tributions, input, support, and expertise of and public consultations throughout the
many people who have been essential to province. Consultations with a wide range
the success of this Review and the com- of community members, experts, organiz-
pletion of this report. ations, police services, and the public were
a core component of this Review and of
First, I wish to thank Chief Justice Stra- central importance to my approach. I will
thy, Chief Justice of Ontario, and my col- never forget the powerful contributions
leagues on the Ontario Court of Appeal and submissions stakeholders made dur-
for their constant support and under- ing these meetings and in a range of writ-
standing while I was away from the Court ten submissions. These contributions and
serving as the Independent Reviewer. submissions informed my analysis and
Second, I thank all the team members the recommendations in this report.
on the Independent Street Checks Re- Fourth, I was fortunate to rely on a num-
view. The success of this Review was a ber of individuals to test ideas and ap-
direct result of the team that supported proaches and review certain portions of
me throughout this process. Each mem- my report. They know who they are. Their
ber brought a unique set of skills and ex- comments were so helpful in this process
pertise to this Review and each of their and I thank them.
contributions was integral to its ultimate
success. I could not have done this with- Finally, and closest to my heart, is my
out their tireless commitment, dedicated family. Thank you for your unyielding
service, and exemplary work over the past support and belief in me and for deal-
18 months. Their contributions are num- ing with my many absences and sched-
erous and invaluable. I am very grateful ule under this Review over the past 18
for everything they have done during the months. I could not have undertaken this
consultations under the Review and for work without you and I am so grateful for
the completion of this report. you. You are my everything.

Third, I would like to acknowledge and

thank all of the stakeholders we met with MICHAEL H. TULLOCH

v
 Letter to the Minister of Community Safety
and Correctional Services

INDEPENDENT STREET EXAMEN INDÉPENDANT DES

CHECKS REVIEW CONTRÔLES DE ROUTINE
Macdonald Block, Box 160 Édifice Macdonald, C.P. 160
Toronto, ON M7A 1N3 Toronto, ON M7A 1N3
Tel: 416-212-1626 Tél: 416-212-1626
Toll-Free: 1-844-523-6122 Sans frais: 1-844-523-6122
Fax: 416-212-8836 Téléc: 416-212-8836
Email: info@streetchecksreview.ca Courriel: info@streetchecksreview.ca

December 11, 2018

The Honourable Sylvia Jones

Minister of Community Safety and Correctional Services
25 Grosvenor Street
Toronto, ON M7A 1N8

Dear Minister Jones:

RE: The Independent Street Checks Review

I am pleased to provide you with my report in response to the terms of reference dated May 19,
2017.

Within this report, I have answered the questions outlined in the terms of reference. My answers
and recommendations follow a broad consultation process and reflect the invaluable input of all
of the various stakeholders and members of the public with whom I met.

Thank you for the opportunity to conduct this Review. I trust that you will find my
recommendations helpful in moving forward to ensure that police-public interactions promote
public confidence and keeps our communities safe.

Yours very truly,

The Honourable Justice Michael H. Tulloch

Independent Reviewer of O. Reg. 58/16

vii
 Letter to Participants and Stakeholders

INDEPENDENT STREET EXAMEN INDÉPENDANT DES

CHECKS REVIEW CONTRÔLES DE ROUTINE
Macdonald Block, Box 160 Édifice Macdonald, C.P. 160
Toronto, ON M7A 1N3 Toronto, ON M7A 1N3
Tel: 416-212-1626 Tél: 416-212-1626
Toll-Free: 1-844-523-6122 Sans frais: 1-844-523-6122
Fax: 416-212-8836 Téléc: 416-212-8836
Email: info@streetchecksreview.ca Courriel: info@streetchecksreview.ca

December 11, 2018

Dear Participants and Stakeholders:

RE: The Independent Street Checks Review

My consultation process is complete and I have now produced a report reflecting your
submissions.

I want to take this opportunity to personally thank all of you for your participation in this
process. Your contributions have been invaluable to my team and me. I am very hopeful that
your input will result in police-public interactions that promote public confidence and keep our
communities safe.

Yours very truly,

The Honourable Justice Michael H. Tulloch

Independent Reviewer of O. Reg. 58/16

ix
 Definitions

1. Arbitrary: “Depending on individ- ticulable cause has been defined as “a con-

ual discretion … founded on prejudice stellation of objectively discernible facts
or preference rather than on reason or which give the detaining officer reason-
fact”.1 According to subsection 5(4) of able cause to suspect that the detainee is
the Regulation, an attempted collection criminally implicated in the activity under
by a police officer from an individual is investigation”. It involves both an object-
done in an arbitrary way unless the officer ive and subjective standard. This means
has a reason that the officer can articulate that an officer’s subjective suspicion that
that complies with all of the following: a targeted individual is possibly engaged
in some criminal activity is not sufficient.
1) The reason includes details about The officer’s suspicion must also be ob-
the individual that cause the officer jectively reasonable; that is, supported by
to reasonably suspect that identifying objective facts. Articulable cause is tanta-
the individual may contribute to or mount to reasonable suspicion, which is
assist in an inquiry described in clause defined below.
1(1)(a) or (b) or the gathering of in-
formation described in clause 1(1)(c). 3. Attempt to obtain identifying in-
formation: A face-to-face encounter in
2) The reason does not include either which a person is asked to identify them-
of the following: selves or to provide information for the
i. that the individual has declined purpose of identifying themselves, wheth-
to answer a question from the of- er or not the information is actually col-
ficer which the individual is not lected. An attempt to collect identifying
legally required to answer; or information, therefore, includes an actual
ii. that the individual has attempted collection of identifying information.
or is attempting to discontinue 4. Carding: Situations in which a po-
interaction with the officer in cir- lice officer randomly asks an individual
cumstances in which the individual to provide identifying information when
has the legal right to do so. there is no objectively suspicious activ-
3) The reason is not only that the in- ity, the individual is not suspected of any
dividual is present in a high crime lo- offence and there is no reason to believe
cation. that the individual has any information
on any offence. That information is then
2. Articulable cause: A cause that can recorded and stored in a police intelli-
be justified in a stated explanation. Ar- gence database.

xi
 The Independent Street Checks Review

5. Child: A person who is or, in the ab- ably and objectively necessary. By con-
sence of evidence to the contrary, appears trast, where there are reasonable grounds
to be under the age of 12. to believe that the individual has commit-
ted, is committing or is about to commit
6. Historical data: Identifying informa- an indictable offence, a police officer can
tion collected prior to January 1, 2017, to arrest the individual. Investigative deten-
which the Regulation would have applied tions cannot be based on mere suspicion,
had it been collected on or after January speculation, a spidey-sense, a guess or a
1, 2017. hunch.
7. Identifying information: Any infor- 10. Minor: A person under the age of 18.
mation which, alone or in combination
with other information, can be used to 11. Objective and credible reasons/
identify an individual. Identifying infor- grounds: The criteria which defines sus-
mation includes information about an in- picion that is more than a mere suspicion
dividual’s race, age, sex, sexual orientation, and less than reasonable suspicion and is
gender identity, marital or family status, grounded on objectively discernible facts.
socioeconomic circumstances, and educa- Police officers cannot simply state that
tion, medical, psychiatric, psychological, they had a hunch for requesting identify-
criminal or employment history. ing information. Objective and credible
reasons must exist.
8. Intelligence gathering: The process
whereby police collect information. It 12. Prohibited/protected grounds of
can be specific or random. Where in- discrimination:  The Ontario  Human
telligence is gathered in order to solve a Rights Code  prohibits discrimination or
crime that an officer reasonably suspects harassment based on certain person-
has already occurred or is about to occur, al characteristics. The specific protected
it forms part of an investigation that is grounds include: age, ancestry, citizen-
exempt from the Regulation. ship, colour, creed, disability, ethnic origin,
family status, gender identity and gender
9. Investigative detention: The hold- expression (recently added to the  Code),
ing of a suspect without formal arrest marital status, place of origin, race, sex
during the investigation of the suspect’s (including pregnancy), sexual orientation,
participation in a crime.2 Courts have receipt of public assistance (in housing)
recognized a power to briefly detain for and record of offences (in employment).
investigation an individual if there are
reasonable grounds to suspect (as opposed 13. Random: Without “definite aim, dir-
to reasonable grounds to believe) that the ection, rule or method … lacking a def-
individual is connected to a particular inite plan, purpose or pattern”.3 Random
crime and that the detention is reason- street checks refer to street checks that

xii
 Definitions

do not have a direct aim or purpose other suspicion is tantamount to articulable

than to collect and record identifying in- cause, which is defined above.
formation, and that are not based on ob-
17. Receipt: An individual who has
jective grounds.
been questioned by the police in a regu-
14. Random requests: Where a po- lated interaction must be provided with
lice officer makes a request for identify- a document that is often referred to as
ing information without suspecting the the “receipt”, which provides a record of
possibility of an offence or any reason to the attempt to collect the information.
believe that the person has useful infor- Under the policies and procedures adopt-
mation. ed under the Regulation by various police
services, the receipt has also been called a
15. Reasonable and probable grounds “street check receipt/document”, “Collec-
to believe: Reasonable and probable tion of Identifying Information Receipt”,
grounds to believe is a higher standard “Record of Interaction Form”, “Contact
than reasonable suspicion. What distin- Card”, “Document of Interaction” or,
guishes “reasonable suspicion” from the simply, “document”.
higher standard of “reasonable and prob-
able grounds to believe” is “the degree of 18. Records management systems: On-
probability demonstrating that a person line database used to record, store, or-
is involved in criminal activity, not the ganize and make accessible information
existence of objectively ascertainable facts collected by police officers. This informa-
which, in both cases must exist to support tion is used to conduct analyses and pro-
the search”.4 duce reports. For instance, information
collected from street checks before 2017
16. Reasonable suspicion: An expecta- and regulated interactions after 2017 are
tion that a targeted individual is possibly stored within a specific module of a rec-
engaged in some criminal activity.5 It ords management system.
must be based on something more than a
mere suspicion and is something less than 19. Regulated interaction: Where po-
a belief based on reasonable and probable lice collect identifying information from
grounds. “Like reasonable and probable an individual about the individual on or
grounds, reasonable suspicion is an ob- after January 1, 2017, and the Regula-
jective standard that requires “objectively tion applies to the interaction. Where an
discernable facts, which can be subject to interaction qualifies as a regulated inter-
independent judicial scrutiny”. However, action, police officers are required to do
reasonable suspicion is a lower standard a number of things, including provide a
than reasonable and probable grounds, reason for the interaction and a receipt
looking at reasonable possibility, rather documenting the interaction.
than reasonable probability.6 Reasonable

xiii
 The Independent Street Checks Review

20. Regulation: References to the Regu- and these biases stem from one’s ten-
lation refer to Collection of Identifying In- dency to organize social worlds by cat-
formation in Certain Circumstances – Pro- egorizing.  Unconscious bias is far more
hibition and Duties, O Reg 58/16, under prevalent than conscious prejudice and is
the Police Services Act, RSO 1990, c P-15. often incompatible with one’s conscious
values. Certain scenarios can activate
21. Suspicious activity: The Regulation unconscious attitudes and beliefs. For
currently does not define this term. In example, biases may be more prevalent
this report, I have recommended adopt- when multi-tasking or working under
ing the following definition: a situation time pressure”.7  Most people have an un-
where, under all of the circumstances, conscious or implicit bias in one or more
there are objective, credible grounds to areas.  Implicit bias is the most difficult
request identifying information. Police area to address because it occurs subcon-
officers should be directed and trained sciously.  Many studies have shown that
that they may inquire into suspicious ac- the general population hold stereotypes,
tivities. Where I refer to suspicious activ- and that most people may have an im-
ity in this report, I adopt this definition. plicit bias against others of which they are
22. Street check: Identifying information unaware.8 The issue of unconscious bias
obtained by a police officer concerning an must be recognized as a systemic issue
individual, outside of a police station, that and addressed not only by police officers,
is not part of an investigation. but also by prosecutors, judges and all ac-
tors within the criminal justice system. 
23. Targeted requests: Where a police Implicit or unconscious bias is sometimes
officer makes a request for identifying referred to as hidden bias, unintentional
information where the officer suspects bias or implicit social cognition.
the possibility of an offence or observes
suspicious activities or suspects that the 25. Verifier: A person whose responsibil-
person will have useful information about ity it is to review the regulated interaction
offences. information submitted by police officers
in order to verify that the information
24. Unconscious/implicit bias: Accord- was collected properly and pursuant to
ing to the University of California San all the requirements of the Regulation.
Francisco’s Office of Diversity and Out- The rank, title, and role of the person who
reach, unconscious bias, also known as serves as the verifier is different from ser-
implicit bias, are “social stereotypes about vice to service.
certain groups of people that individuals
form outside their own conscious aware- 26. Young person: A person 12 or older
ness. Everyone holds unconscious beliefs but also under the age of 18.
about various social and identity groups,

xiv
 Part I
Executive Summary
 Part 1 • Executive Summary 3
Executive Summary

3. This report seeks to answer certain

critical questions and provide recommen-
dations on how to improve the Regula-
tion and ensure that it serves the original
intent and purposes for which it was en-
acted. In this Executive Summary (Part
I of my report), I summarize: the back-
ground of this Review (Part II), the legal
context (Part III), and my findings and
recommendations (Parts IV and V).

Summary of Part II: Background

4. Crime prevention is essential to the
1. On June 7, 2017, I was appointed by maintenance of public safety, and the
the Government of Ontario to lead an police must have proper tools in order
independent review of Regulation 58/16 to undertake this work. However, the
(O. Reg. 58/16) and its implementation. public’s trust in police is the bedrock on
Regulation 58/16, introduced in 2016, which police legitimacy is built: without
outlines Ontario’s new rules on the col- it, police lose authority and the ability
lection of identifying information by po- to do their jobs. This is the lens through
lice in certain circumstances, a practice which any analysis of street checks and
that is commonly known as street checks carding must be done.
(and sometimes referred to as carding).
5. Street checks were originally in-
2. In my capacity as the Independent tended as an investigative tool to capture
Street Checks Reviewer, I reviewed the the information of people who police
content of the Regulation and assessed had reason to suspect of being involved
whether police officers, chiefs of police in criminal activity. Over time, however,
and police services boards are complying it grew into a much less focused practice.
with it. More specifically, the Review has Some police services began collecting and
looked at whether the Regulation reflects storing personal identifying information
the government’s goal of ensuring that of many citizens without any belief that
police–public relations are consistent, bi- they were involved in criminal activity,
as-free and done in a way that promotes and without much evidence that such
public confidence and protects human databases were particularly useful in solv-
rights. ing crime.
4 The Independent Street Checks Review

6. Many of the issues surrounding card- in the perception of police legitimacy.

ing and street checks stem from a mis- These impacts are felt disproportionately
understanding of the terms themselves. A by certain races and groups, particularly
street check is where information is ob- Indigenous, Black and other racialized
tained by a police officer concerning an communities, as well as youth and people
individual, outside of a police station, that from lower socioeconomic groups.
is not part of an investigation. This is a
8. These issues ultimately led the Gov-
very broad category of police information
ernment of Ontario to file Regulation
gathering, and much of it is legitimate
58/16, which I am mandated to review.
intelligence gathering of potentially use-
In Chapter 2, I also outline the history
ful information. Carding, as referred to
and purpose of the Regulation, and sali-
in this report, is a small subset of street
ent issues around the understanding, in-
checks in which a police officer randomly
terpretation and application of the Regu-
asks an individual to provide identifying
lation in Ontario. Within this context, I
information when the individual is not
recommend that the Government of On-
suspected of any crime, nor is there any
tario immediately proceed to implement
reason to believe that the individual has
or amend the Regulation in accordance
information about any crime. This infor-
with the recommendations I make in
mation is then entered into a police data-
Chapters 5 to 12 of this report. I note that
base.
all recommendations and amendments
must take into account the time and re-
The public’s trust in police is the sources necessary for police services to
bedrock on which police legitim- ensure effective, proper training and im-
plementation of the revised Regulation.
acy is built.
The government should allocate addi-
tional resources to police services specif-
7. In Chapter 2 of this report, I go ically for this purpose (Recommendation
over the history and evolution of street 2.1).
checks, as well as the impact of random
9. Under the terms of reference, the
street checks, including their benefits
Government of Ontario asked me to an-
and costs. While proponents of random
swer a number of questions about a) the
street checks argue that such stops can
content of the Regulation and b) the im-
help deter crime and assist in criminal
plementation of the Regulation.
investigations, the many costs include:
the negative effects on the physical and 10. Regarding the content of the Regula-
mental health of those carded; potential tion, I was asked to answer the following
negative impacts on their employment questions:
and other opportunities; the loss of pub-
lic trust and cooperation; and a reduction • Does the Regulation ensure that po-
 Part 1 • Executive Summary 5

lice–public interactions are consistent? ommendations as to how the mechan-

• Does the Regulation ensure that po- isms could be improved?
lice–public interactions are conducted • Are there any amendments, policy and/
without bias or discrimination? or procedural changes recommended
• Does the Regulation ensure that po- to improve the implementation of the
lice–public interactions are done in a Regulation?
manner that promotes public confi- • Are police officers and police chiefs
dence and keeps our communities safe? generally in compliance with the Regu-
• Does the Regulation appropriately re- lation?
flect the principle that Ontario takes • Are police officers and police chiefs spe-
the protection of human rights very ser- cifically in compliance with the Regula-
iously and has zero tolerance for racism tion regarding:
or any form of discrimination based on ◦◦ the data retention and management
the prohibited grounds set out in sec- requirements;
tion 1 of the Human Rights Code?
◦◦ the elimination of performance
• Does the Regulation appropriately re- targets;
flect the principle that Ontario stands
◦◦ the delivery of training;
opposed to arbitrary, random stops that
do not have a clear policing purpose, ◦◦ the development of procedures; and
and which are done solely for the pur- ◦◦ the provision of reports?
pose of collecting identifying informa-
• Have police services boards developed
tion?
policies that comply with the Regula-
• Are there any recommendations that tion?
should be made regarding the content
• Do the curriculum and related training
of the Regulation in light of the preced-
materials developed by the Ontario Po-
ing questions?
lice College ensure compliance with the
11. On the implementation of the Regu- Regulation?
lation itself, I was asked to answer the fol-
• Are there any recommendations to be
lowing questions:
made regarding the effectiveness of the
• Are there any challenges, operational or training developed by the Ontario Po-
otherwise, in applying the Regulation lice College?
and, if so, what are the recommenda- • What are the approaches police services
tions as to how they could be addressed? have adopted to implement the Regu-
• Are the accountability and oversight lation?
mechanisms in the Regulation appro- • Are there any recommendations re-
priate to ensure compliance with the garding the approaches police services
Regulation and, if not, what are the rec- boards should take with regard to the
6 The Independent Street Checks Review

document to be provided to individuals Appendix E.

following a regulated interaction, and is
15. The overall consultation process
consistency required in that regard?
under the Review took over 11 months,
• Are there any recommendations re- during which time I met with more than
garding the approaches police services 2,200 people and received over 100 writ-
boards should take with regard to the ten submissions. Many stakeholders were
retention of information collected pur- consulted, including police services, com-
suant to the Regulation, and is con- munity groups and organizations, public
sistency required in that regard? interest groups, individuals and academ-
• Are there any recommendations re- ics.
garding the approaches police services
16. I met with officials from 34 police ser-
boards should take with regard to the
vices in Ontario, including police chiefs,
establishment of age groups and racial-
members and police services boards, in
ized groups when reporting on the col-
order to understand their perspectives
lection of data, and is consistency re-
and the impact of the Regulation on their
quired in that regard?
work.
12. These questions are numerous and
complex, and they required in-depth an- 17. There were 12 public consultations
alysis, research, consultations and out- held throughout the province during
reach in order to answer them. which members of the public expressed
their views, concerns and feedback on
13. At this stage, I wish to outline the street checks and the Regulation, and
Review’s consultation process. It was very made recommendations.
important to me to hear from as many
people as possible in order to develop rec- 18. I met with Indigenous, Black and
ommendations that would make a tan- other racialized communities throughout
gible impact. the province. Hearing directly from these
communities highlighted the histor-
14. The terms of reference required that I ic and current issues these communities
consult with the Minister Responsible for face with respect to the practice of street
Anti-Racism and the Independent Police checks.
Review Director. I was also required to
conduct an independent survey of civil- 19. Consultations with all of these groups
ians to address certain issues around po- were essential to me, as they provided
lice compliance with the Regulation, and valuable context, information and insight
police–public interactions. This survey into the issues I was asked to address
was conducted as part of the Review and under the Review. Their contributions
a summary of its findings are threaded shaped my recommendations in this re-
throughout the report and included in port. I am deeply grateful to everyone I
 Part 1 • Executive Summary 7

met for their openness and willingness to Summary of Part III: The Context
share their knowledge, experiences, lived for the Independent Review
realities and expertise with me.
Chapter 4: Policing – Powers and
20. In addition to the consultations, I Limits
undertook extensive research on the
22. In Chapter 4, I provide a summary
legal issues implicated in the Review of
of certain civil liberties and fundamen-
the Regulation to answer the questions
tal rights of individuals, as well as the
asked of me. I conducted a comparative
applicable duties and powers of police of-
analysis of other countries’ approaches to
ficers and the limits on those powers that
these issues, with a view to identifying
currently exist in our law. This summary
approaches or analytic frameworks that
serves as the legal context for the Regula-
would be of particular relevance to the
tion and my recommendations set out in
situation in Ontario.
later chapters.

23. People enjoy many individual rights,

one of which is the right to walk about
The overall consultation process freely without state interference. Faced
under the Review took over with police questioning on the street, a
11 months, during which time person is generally free to decline to an-
I met with more than 2,200 swer and walk away. This, of course, does
not prevent a police officer from being
people and received over 100
able to speak to people but, unless a po-
written submissions. lice officer has grounds to arrest or detain
a person, they cannot prevent someone
from leaving an interaction.
21. In Chapter 4 of this report, I provide 24. The duties of police officers form an
important contextual information on key important part of the discussion in this
legal concepts, statutes and constitution- chapter. Certain powers are granted to
al provisions that underpin the analysis police officers in order to enable them
and recommendations in this report. My to discharge their duties. These powers
recommendations are set out in Parts IV come from both statute (e.g. the Criminal
and V, namely Chapters 5 to 12. I have Code) and from common law. Police dut-
included the full list of recommendations ies include the preservation of peace, the
in Appendix A. In the following sections, prevention of crime and the protection
I briefly summarize each chapter, and of life and property. To discharge these
highlight the key recommendations made duties, police officers may need to engage
in Chapters 5 to 12. with members of the public, including
8 The Independent Street Checks Review

stopping and questioning them. But their lar crime and that the detention is rea-
ability to do so is not unlimited: a balance sonably and objectively necessary. This
must be struck between protecting indi- reasonable suspicion must be based on
vidual liberties and properly recognizing something more than a mere suspicion or
certain police functions. a “hunch” but can be something less than
a belief based on reasonable and prob-
25. To discharge their duties, police have able grounds that would justify an arrest.
certain limited powers to interfere with When an individual is subject to an in-
the ability of citizens to walk freely down vestigative detention, the police must ad-
the street. These powers include powers of vise them of the reasons for the detention
arrest, statutory powers of detention and as well as their right to counsel. In these
common law powers of detention. circumstances, individuals do not have to
26. Police officers can arrest a person with speak to police.
or without a warrant. When they are ar- 29. Detention does not automatically
resting a person without a warrant, they occur as soon as police engage an indi-
must find the person committing a crim- vidual for investigative purposes; it only
inal offence or have reasonable grounds arises when a person is either physically
to believe the person has committed or is detained (e.g. through handcuffing) or
about to commit an offence. Police also psychologically detained. Psychological
have some powers of arrest derived from detention occurs when a reasonable per-
other statutes. When individuals are ar- son in the person’s position would feel
rested, police must advise them of the obligated to comply with a police direc-
reasons for the arrest as well as their right tion or demand. Courts have outlined a
to counsel, and individuals then have an number of factors to be considered when
obligation to identify themselves. determining whether there has been a
27. Police have a number of statutory psychological detention, which I outline
authorities for stopping or detaining in- in Chapter 4. Ultimately, whether some-
dividuals, such as legislation regulating one is psychologically detained is deter-
access to courthouses and airports, or mined by taking into account all of the
providing for certain types of warrants circumstances of the encounter and the
(e.g. a warrant for DNA). conduct of the police.

28. The main detention power that police 30. In situations falling short of a “deten-
have at common law is the power to de- tion”, individuals have other protections
tain for investigative reasons. Police have against arbitrary conduct provided by
the power to briefly detain an individual statute, such as those provided by the On-
for investigation if the police have object- tario Human Rights Code and Ontario’s
ively reasonable grounds to suspect that Anti-Racism Act, 2017.
the individual is connected to a particu- 31. With this legal context in mind, I will
 Part 1 • Executive Summary 9

now summarize each of the following not an officer decides to ultimately dis-
chapters, highlighting key recommenda- card the information (Recommendation
tions. 5.2). I have also made recommendations
about standardizing the definition of
Summary of Part IV: Collecting and what constitutes identifying information
Managing Identifying Information - across jurisdictions. (Recommendations
Findings and Recommendations 5.3 and 5.4).

Chapter 5: Application and

Interpretation of the Regulation I recommend that the Regula-
32. In this chapter, I examine the cir- tion expressly stipulate that its
cumstances in which the Regulation ap- purpose or objective is to pre-
plies to an interaction between a police
officer and an individual. I consider the
vent arbitrary or random stops
general application of the Regulation, of individuals
the meaning of identifying information,
the categories of collections to which
35. The Regulation specifically does not
the Regulation applies and areas where
apply to a number of situations, includ-
the Regulation does not apply. I identify
ing instances where a person is legally
gaps in the Regulation’s operation, based
required to provide the information to a
on concerns that the Regulation was in-
police officer. These instances arise where
tended to address, and I make recom-
legislation, such as the Highway Traffic
mendations to address those gaps.
Act, the Liquor License Act, or the Tres-
33. At the outset, I recommend that the pass to Property Act enable police to obtain
Regulation expressly stipulate that its identifying information from individuals.
purpose or objective is to prevent arbi- I have recommended that the Province of
trary or random stops of individuals Ontario consider the possibility of revis-
(Recommendation 5.1). ing such Acts to include similar protec-
tions as those contained in the Regula-
34. The Regulation applies to attempts tion (Recommendation 5.5). I have also
to collect identifying information from made recommendations regarding the
individuals by police officers if the at- application of the Regulation to vehicle
tempt is done for the purpose of: inquir- stops and to passengers in vehicles (Rec-
ing into offences that have been or might ommendations 5.6 and 5.7).
be committed; inquiring into suspicious
activities to detect offences; or gathering 36. I have explored and made recom-
information for intelligence purposes. mendations about the circumstances to
I have recommended that officers be which the Regulation ought not to apply,
instructed that it also applies whether or including: where an individual appears to
10 The Independent Street Checks Review

match the description of a missing person, a specific reason to believe the identifying
human trafficking victim, or other victim information would be valuable police in-
of crime; or where an officer is simply telligence. In my view, these interactions
chatting with members of the commun- are proper and should be subject to the
ity to build relationships (Recommenda- Regulation.
tions 5.8 and 5.9). I also recommend that
39. Random gathering of information for
procedures developed by chiefs of police
intelligence purposes, however, amounts
ensure that identifying information col-
to the practice traditionally known as
lected in such situations is not recorded in
carding: people are being identified sim-
any regulated interactions database (Rec-
ply to create a database of individuals in
ommendation 5.10).
the area. Two fundamental questions cen-
37. A key aspect of the Regulation is the tral to this Review are: do random street
distinction between investigating an of- checks actually work and should random
fence, which is exempt from the Regula- street checks or carding ever be allowed?
tion, and inquiring into suspicious activ-
40. In contemplating whether random
ities and general criminal activities, which
street checks work, I consider Canadian
fall under the Regulation’s purview. I ex-
and international experiences and re-
plain that, in the latter case, there should
search, as well as my own observations
be some suspicion based on objective and
from the many consultations conducted
credible grounds justifying an inquiry, al-
over the course of this Review. I conclude
beit short of the reasonable grounds for
that random street checks, which take
suspicion required for an investigation. I
considerable time and effort for a po-
make recommendations designed to en-
lice service to conduct, have little to no
sure that this distinction is clear and that
verifiable benefits relating to the level of
identifying information collected under
crime or even arrests. In fact, even before
this provision of the Regulation is col-
the Regulation, many police services had
lected in a manner and spirit in line with
already discontinued the practice because
the Regulation’s purpose (Recommenda-
of its lack of effectiveness.
tions 5.12, 5.13, and 5.14). I also recom-
mend that regulated interactions should 41. I also consider emergency situations
take no longer than reasonably necessary and threats to public safety, and find
(Recommendation 5.11). that the tools police already have, with-
out random street checks, allow them to
38. Next, I discuss the collection of infor-
effectively address such circumstances. I
mation for intelligence purposes, which is
thus recommend discontinuing the use of
the final category of collection to which
random street checks altogether (Recom-
the Regulation applies. This information
mendation 5.15).
gathering can be specific or random in
nature. It is specific in nature when there is
 Part 1 • Executive Summary 11

Chapter 6: Prohibition on the 45. The purpose of this requirement is to

Collection of Certain Information prevent people from being stopped and
questioned for improper reasons or based
42. In this chapter, I address the question
on a vague description. The solution is
of when police officers are not authorized
to require a credible, reasonably specif-
to collect identifying information.
ic description relating to the individual
43. Under section 5 of the Regulation, and their circumstances before a request
police officers are prohibited from col- is made for identifying purposes. I have
lecting identifying information if “any made a recommendation on the phrasing
part” of the reason for the attempted col- of this section of the Regulation to assist
lection is because the officer perceives the with this issue (Recommendation 6.1).
individual to be part of a racialized group
46. As I mentioned above, police officers
or the attempted collection is done in an
are also prohibited from collecting iden-
“arbitrary way”. I recommend that other
tifying information in an arbitrary way.
prohibited grounds of discrimination
A collection is considered to be arbitrary
under the Ontario Human Rights Code
unless the police officer can articulate
and the individual’s socioeconomic status
a proper reason for the attempted col-
also be included in this section (Recom-
lection. I have made a recommendation
mendation 6.1).
to expand the section of the Regulation
44. The collection of identifying informa- that specifies what those reasons can and
tion is, thus, considered to be improper if cannot include (Recommendation 6.2). I
part of the reason for the collection is the also explore and give examples of circum-
person’s membership in a protected group stances in which police officers should
(i.e. they are part of a group protected by and should not obtain identifying infor-
a prohibited ground of discrimination mation from members of the public.
under the Ontario Human Rights Code
47. Finally, I close this chapter by ad-
or on the basis of their socioeconomic
dressing an issue that the Regulation
status). That said, membership in a pro-
currently does not canvass: the need for
tected group, such as racial identity, is
all police–public interactions to be con-
often a necessary component of a suspect
ducted without bias or discrimination. I
description. As such, an officer can at-
therefore recommend that: officers should
tempt to collect identifying information
be trained and have articulable reasons
from individuals on the basis that they
for initial inquiries and gathering infor-
appear to be part of a protected group as
mation regardless of whether identifying
long as the officer is seeking a particular
information is requested; and that no part
individual and the officer has addition-
of the reasons for these interactions may
al information regarding the individual
be a ground prohibited by the Regulation
other than their membership in a pro-
(Recommendation 6.3).
tected group.
12 The Independent Street Checks Review

Chapter 7: Duties Relating to tions 7.2, 7.3, and 7.4).

Collection of Information
51. I pay close attention to requests for
48. Chapter 7 focuses on the duties of identifying information involving chil-
police officers relating to the collection dren under the age of 12. I make a rec-
of identifying information. I begin the ommendation about when officers can
chapter by underscoring the importance request identifying information from
of procedural justice and civility, not- children and the special rules that apply
ing that public confidence in the police in these situations (Recommendation
is promoted when the police are per- 7.5).
ceived to be acting legitimately and they
treat members of the public in a polite,
respectful, open and dignified manner.
Public confidence in the police
When police are seen to be acting in a
legitimate manner, people are more likely is promoted when the police are
to follow police directives, report crime perceived to be acting legitim-
and cooperate in investigations. ately and they treat members of
49. When it comes to requests for iden- the public in a polite, respectful,
tifying information, police have a duty to open and dignified manner.
inform individuals of certain things be-
fore attempting to collect the identifying
information. In this chapter, I outline the 52. I then turn to a review of the docu-
importance and timing of these notifica- ment of interaction (also known as the
tions and what these notifications should “receipt”) and the importance of this
include. I explain why there is a compel- document in promoting public confi-
ling reason to let people know the reason dence. I make recommendations on the
the information is being requested and province-wide standardization of the
how it will be used. receipt, including details on the format
of the receipt and the information to be
50. In this chapter, I recommend that
contained on the receipt (Recommenda-
requests for identifying information be
tions 7.6, 7.7, and 7.8).
made in a professional, civil manner
(Recommendation 7.1). I make recom- 53. I outline and explore the duty of of-
mendations on what must be included in ficers to record the reason for collecting
the rights notification that officers pro- identifying information, including an
vide before requesting identifying infor- examination of the other information
mation, the tone and manner that officers that should be specifically recorded dur-
should use when notifying people of their ing and after a request for identifying in-
rights and, finally, officer requests for sup- formation under the Regulation. I make
porting documentation (Recommenda- recommendations on what a police offi-
 Part 1 • Executive Summary 13

cer must record during a regulated inter- tion (Recommendations 8.3, 8.4 and 8.5).
action (Recommendations 7.9 and 7.10). When it comes to the retention of iden-
tifying information in police databases, I
54. I also recommend a format for and note that there is currently no consistent,
province-wide standardization of the province-wide time limit on retention. I
form for police officers to input informa- recommend a definite time limit for the
tion obtained from these regulated inter- retention of data (five years), after which
actions into their databases (Recommen- time it should automatically be destroyed
dations 7.11 and 7.12). unless needed for a specific, listed purpose
in the Regulation (Recommendation 8.6).
Chapter 8: Inclusion of Collected I further recommend that a police service
Information in Databases may choose to destroy identifying infor-
55. This chapter is divided into two parts. mation earlier than five years after it was
collected (Recommendation 8.7).
56. The first part looks at the inclusion
of data collected from requests for iden- 58. Regarding the analysis of the identi-
tifying information after the Regulation fying information in police databases, I
came into force on January 1, 2017. I outline the requirements for an annual,
address when identifying information detailed review by the chief of police (or
collected by a police officer may be en- their designate) of an appropriately sized
tered into a database on a restricted and a random sample of entries in the non-re-
non-restricted basis, depending on com- stricted database, with a recommendation
pliance with the terms of the Regulation, about the need for clarity in what consti-
and the role of the chief of police and tutes an appropriately sized random sam-
their designate in making this determina- ple (Recommendation 8.8). When the
tion. To this end, I make a recommenda- chief of police’s review determines that
tion on the role of the chief of police and there was not proper compliance with the
their designate in ensuring compliance Regulation when identifying information
with the Regulation (Recommendation was collected, this information must be
8.1). I also recommend when information kept in a restricted database. The chief
should be included in a restricted versus of police must consider the results of the
a non-restricted database (Recommenda- review and take appropriate actions to
tion 8.2). ensure that data is collected pursuant to
the requirements of the Regulation. I also
57. In this first part, I also outline situ-
make a recommendation on the use of the
ations where police can access restricted
collected, de-identified data for research
information, and make recommendations
purposes (Recommendation 8.9).
related to: the rules for accessing this in-
formation, documenting the access and 59. In the second part of Chapter 8, I ad-
the restrictions on the use of the informa- dress the retention of, access to and dis-
14 The Independent Street Checks Review

closure of data collected before January quested that all historical data be de-
1, 2017, to which the Regulation would stroyed, while other stakeholders indicat-
have applied (also referred to as historical ed that historical data could be useful in
data). More specifically, the Regulation future litigation or for possible missing
requires police services boards to develop persons investigations.
policies and chiefs of police to develop
procedures, respectively, regarding the 63. Given these considerations and to
retention of, access to and disclosure of balance these perspectives, I recommend
historical data to which the Regulation that historical data be destroyed five years
would have applied. after it was collected (Recommendation
8.12). I also make recommendations
60. The challenge I faced here is that about storing historical data in restricted
identifying information collected be- databases and the circumstances under
fore January 1, 2017, was not separated which historical data can be accessed and
into different types of interactions. The used (Recommendations 8.10 and 8.11).
pre-Regulation computer modules for Finally, I note that a police service may
street checks in the police databases in- choose to destroy historical data earlier
cluded what are now considered regulat- than five years after it was collected (Rec-
ed interactions and other, non-regulat- ommendation 8.13).
ed interactions (e.g. tickets, observation
checks). A reason for the sharp decline in Summary of Part V: Operational,
the numbers of what are commonly re- Policy and Procedural Challenges –
ferred to as street checks post-Regulation Findings and Recommendations
is that the numbers outlined pre-Regula-
tion, which often were in the thousands, Chapter 9: Training of Police and
included both regulated and non-regulat- Public Education
ed interactions grouped together under 64. As part of my mandate, I was asked to
the street checks module. review the curriculum and related training
materials on the Regulation prepared by
61. At present, the Regulation does not
the Ontario Police College and to make
require identifying information collected
recommendations on the training provid-
before January 1, 2017, to be deleted after
ed to police officers across the province.
a certain time nor does it require infor-
The Regulation mandates that training
mation collected contrary to the Regu-
be provided to any police officer who at-
lation’s terms to be placed in a restricted
tempts to collect identifying information.
database. These decisions are left to the
respective policies and procedures, which 65. In outlining the origins and develop-
I described above. ment of the training and determining
whether the training provided complied
62. I noted that many communities and
with the Regulation, I review in detail
organizations in my consultations re-
 Part 1 • Executive Summary 15

both the in-person training sessions and in Ontario, I noticed that there was a lack
the online training modules that police of consistency in the training provided.
officers were required to complete. I also Some services reported that the training
outline the complexities in the initial de- was excellent while other services noted
livery of the training in the fall of 2016, that the training was problematic and
noting the rushed development and de- raised concerns among officers. Some
livery of the training and the fact that officers felt that the training on implicit
police services only finalized procedures bias was founded on the incorrect as-
for the implementation of the Regulation sumption that all police officers are racist.
after the training was delivered. However, I note that unconscious bias
training is provided across many sectors.
66. I find that the training failed to give Unconscious bias is an issue that impacts
adequate attention to the reason for all actors in the criminal justice system
the Regulation and, as such, failed to and everyone within society more gen-
get strong buy-in from police officers erally. As such, I make observations and
who often viewed street checks as a To- recommendations on how anti-bias and
ronto-centric issue rather than a prov- implicit bias training should be designed
ince-wide one. In my view, the training and implemented (Recommendations
also failed to spend sufficient time on the 9.4, 9.5, 9.6, 9.7, 9.8, and 9.9).
Regulation itself and the legal bases for
police stops.
The training failed to give
67. While the training focused on front-
adequate attention to the reason
line police officers who collect identify-
ing information and the designates of for the Regulation and, as such,
the chiefs of police, there was no specif- failed to get strong buy-in from
ic training for the data verifiers on their police officers who often viewed
roles and responsibilities, nor was there street checks as a Toronto-cen-
training for police chiefs or their dep-
tric issue rather than a prov-
uties on the reporting, data retention and
oversight requirements of the Regulation. ince-wide one.
I make recommendations on expanding
the training to supervising officers and 69. I highlight the importance of police
ensuring that there is strong buy-in from and community cooperation in the de-
supervisors (Recommendations 9.1 and velopment and delivery of training to po-
9.2). I also recommend that trainers be lice officers. I recommend that the train-
selected based on their credibility with ing include: a consideration of adolescent
other officers and support of the Regula- development; specific segments regarding
tion (Recommendation 9.3). the geographic area and local realities of
68. In my meetings with police services the police service; the application of the
16 The Independent Street Checks Review

Regulation in real-world scenarios; and a be given to establishing a College of Poli-

special focus on the ability to articulate cing as the professional body for policing,
reasons for a regulated interaction (Rec- and to modernizing the policing curricu-
ommendations 9.4, 9.5, 9.6, and 9.10). lum (Recommendation 9.13). A degree
I recommend that the training include program or an expanded educational re-
testing (Recommendation 9.9). Given quirement would go a long way to ensur-
the complexity of the Regulation, I rec- ing that officers have the full suite of tools
ommend that there be regular, period- to undertake their critical work. I recom-
ic refresher training on the Regulation mend developing a task force or working
(Recommendation 9.11). Further, when group to evaluate existing post-secondary
a police officer transfers from one police programs in police studies or law enforce-
service to another, I recommend that they ment issues, with a view to modernizing
receive training about the specific com- these programs and to updating the On-
munities being served and their particular tario Police College curriculum to develop
issues (Recommendation 9.12). In my a full, stand-alone post-secondary degree
view, the Ministry of Community Safe- in policing (Recommendation 9.14).
ty and Correctional Services should fund
the ongoing training on the Regulation 72. In addition, in this chapter I review
for all police services in Ontario. the limited public information and lack of
public education provided on the Regula-
70. I recommend the creation of a Code tion. The failure to properly inform the
of Practice, similar to those used in the public has resulted in mass confusion re-
United Kingdom (UK), which would garding the Regulation, its specific terms
provide officers with clear, coherent, and its operation in practice. I recom-
comprehensive instructions on the imple- mend that the Ministry of Community
mentation of the Regulation. The Code Safety and Correctional Services work
of Practice would include: definitions of with community groups, youth advo-
key terms and legal concepts; information cacy groups, legal aid clinics and school
on when the Regulation applies; proto- boards to develop and launch public edu-
cols and procedures; and the importance cation materials (Recommendation 9.16).
of civility and professionalism (Recom- I recommend that the Ministry create a
mendation 9.15). I recommend that the full, cross-platform advertising and social
Code of Practice be made publicly avail- media strategy on the Regulation (Rec-
able so that people have information on ommendation 9.17).
the Regulation and its application (Rec-
ommendation 9.18). Chapter 10: Performance Targets,
Policies and Procedures
71. As outlined in my report on the In-
dependent Police Oversight Review, I 73. In Chapter 10, I outline the current
recommend again here that consideration requirements under the Regulation re-
garding the policies and procedures de-
 Part 1 • Executive Summary 17

veloped by police services boards and 77. To ensure the accuracy and con-
chiefs of police, respectively. My recom- sistency of information stored by police,
mendations in this chapter are made to I recommend that inaccurate information
ensure clarity and consistency across the be restricted and eventually purged from
province. the regulated interactions database (Rec-
ommendation 10.2).
74. I note at the outset of this chapter
that the Regulation prohibits police ser- 78. I recommend that the policies seek to
vices from imposing on its police officers eliminate interactions based, even in part,
performance targets for the collection of on grounds of discrimination prohibited
identifying information. This restriction by the Ontario Human Rights Code
was intended to prevent unnecessary and (Recommendation 10.3). Police services
improper street checks and it is a good boards may also develop policies that ex-
one. pand on the content of the Regulation for
the purpose of protecting human rights
and preventing discrimination (Recom-
The failure to properly inform mendation 10.4).
the public has resulted in mass 79. Another major issue I heard about
confusion regarding the Regu- during my consultations is how police
lation, its specific terms and its use the information they collect. Many
operation in practice. individuals expressed the concern that
they would be labelled a “usual suspect”
or “known to police”, which would lead
75. All policies and procedures must be to further stops and negative treatment,
consistent with the Regulation. The cur- and affect their employment prospects
rent Regulation requires policies and pro- and travel. This is especially significant
cedures to be developed regarding: the because there is no way to guarantee that
form of the receipt; the content of the an- information collected during a street
nual report; and the retention, access and check is reliable (e.g. someone could pre-
disclosure of information collected. tend to be someone else). I have made a
recommendation aimed at addressing this
76. Police services and police services issue (Recommendation 10.5).
boards across the province are very differ-
ent, and so are their policies and proced- 80. Chiefs of police must develop proced-
ures. To address this issue, I recommend ures that are consistent with the policies
that there should be a minimum, con- developed by the police services boards.
sistent, province-wide policy to imple- This has not always been the case, par-
ment the Regulation that is binding on ticularly where a police services board
all police services boards (Recommenda- makes a policy that goes beyond the basic
tion 10.1). requirements of the Regulation. I recom-
18 The Independent Street Checks Review

mend that chiefs of police ensure their ing information were made and whether
procedures are in line with their police there was any disproportionate collec-
services boards’ policies (Recommenda- tions; the neighborhoods or areas where
tion 10.6). I also make a recommendation collections were attempted; instances of
regarding the substance of the proced- non-compliance with the Regulation;
ures: that they should seek to eliminate and the number of times members of a
regulated interactions that are based, even police service were allowed to access re-
in part, on a prohibited ground of dis- stricted information in the police service’s
crimination under the Ontario Human database.
Rights Code (Recommendation 10.7). The
83. In reviewing the annual reports re-
procedures can, of course, go beyond the
quired under the Regulation from various
requirements of the Regulation for the
services, I have noted that these reports
purposes of protecting human rights and
have ranged in length anywhere from a
preventing discrimination, as long as they
paragraph in a police service’s overarching
meet the minimum standard set out in
annual report to a 20-page stand-alone
the Regulation (Recommendation 10.8).
report. The reports include different age
Finally, I recommend that the procedures
ranges, racial categories and approaches
be binding on chiefs of police (Recom-
to the number of compliant vs. non-com-
mendation 10.9).
pliant requests. These variations make it
Chapter 11: Reports and Compliance difficult to compare the implementation
and impact of the Regulation across On-
81. In this chapter, I focus on the annual tario. I also note that some services have
reports that, according to the Regulation, included the number of complaints and
must be prepared by chiefs of police and requests for information they have re-
reviewed by police services boards to en- ceived with respect to regulated inter-
sure compliance with the Regulation. actions while others have not. I recom-
82. The annual reports must include mend that a template annual report be
the following information regarding at- developed for use by police services across
tempted collections of identifying infor- the province (Recommendation 11.1).
mation: the number of attempted col- 84. The timeliness of annual reports is a
lections; the number of individuals from concern. As of the time of writing, only
whom identifying information was col- 13 police services had made their reports
lected; the number of times specific sec- publicly available. Currently, the Regula-
tions of the Regulation were relied upon tion does not include a timeline for sub-
to exempt officers from certain rights mission of annual reports. I recommend
notifications or from providing a receipt; that annual reports be made publicly
the age, race and gender of the individuals available within the first six months of
from whom attempts to collect identify-
 Part 1 • Executive Summary 19

the following calendar year (Recommen- 11.11 and 11.12).

dation 11.2).
87. In the context of disproportionate
85. I recommend that the annual report collections of identifying information, I
list the number of complaints and re- underscore the importance of chiefs of po-
quests for information made with respect lice reviewing the practices of their police
to regulated interactions (Recommenda- services and preparing reports summariz-
tion 11.3). Furthermore, I recommend ing their review as well as any proposals
that the age groups of those requested to address issues of concern. I recommend
to provide identifying information be that: collected identifying information be
standardized and that the information monitored for compliance as it is received
distinguish between children and adults, to ensure that it was properly obtained;
including a clear list of recommended age and an early warning system be put in
groups (Recommendations 11.4, 11.5 and place to ensure officer compliance and to
11.6). Similarly, I recommend that the ra- correct any unintentional mistakes (Rec-
cial groups of those requested to provide ommendations 11.13, 11.14 and 11.15).
identifying information be standardized, Identifying concerns early ensures that
including a list of recommended racial officers not complying with the Regula-
group categories (Recommendations tion can receive instruction or retraining
11.7 and 11.8). as required (Recommendation 11.16).
I recommend that officers who persist
86. At present, the Regulation requires in collecting identifying information in
that the data be analyzed to determine breach of the Regulation be subject to
if identifying information is being col- discipline (Recommendation 11.17).
lected from people disproportionately,
but it does not define what “dispropor- 88. Finally, in this chapter, I address the
tionately” means. The result is that each issue of disciplinary charges, noting that
police service could have a different in- police officers could be sanctioned for ob-
terpretation of disproportionate. I canvass taining information improperly but chiefs
various jurisdictions including the United of police would not be sanctioned for
States and the United Kingdom, as well using the improperly obtained informa-
as practices within certain police services tion as long as the use of that information
in Ontario, to bring clarity to the concept is allowed under the Regulation. I note
of disproportionate collections of infor- that the disciplinary measures should not
mation. I have made recommendations to be limited only to those who are attempt-
address this issue and ensure consistency ing to collect the identifying information
among police services, including defining contrary to the Regulation but should
the term disproportionate and making also include those who authorize or al-
the analyzed, de-identified data publicly low such conduct, including supervisors
available (Recommendations 11.9, 11.10, or chiefs of police. I recommend that the
20 The Independent Street Checks Review

Code of Conduct be amended to include to establish and maintain the strong po-
both groups (Recommendation 11.18). lice–community relations essential for
building public trust in police. After out-
89. During my consultations, I also heard lining some examples of strong, positive
about repeated instances where officers community policing programs in On-
refused to provide their name or badge tario, I recommend that police services
number to members of the public when in Ontario receive adequate funding for
requested. I make a recommendation to greater community involvement (Recom-
address this concern by noting that it mendation 12.1).
should be considered misconduct for offi-
cers who are not engaged in covert oper- 93. I heard during my consultations with
ations to refuse to provide their name and police and Indigenous communities that
badge number if requested (Recommen- the relationship between police and many
dation 11.19). Indigenous peoples throughout Ontario
is a complex one. Respectful relationships
Chapter 12: Other Policy and between police and Indigenous com-
Procedural Recommendations to munities takes time and commitment. I
Improve the Implementation of the recommend that police services increase
Regulation outreach to establish meaningful and
equitable partnerships with Indigenous
90. This Review focuses on Regulation
communities (Recommendation 12.2).
58/16 and its specific terms and provi-
sions. However, the terms of reference 94. Throughout my consultations, I heard
for the Review ask me to consider any from many stakeholders that they were
overarching amendments and policy and/ concerned that police officers did not
or procedural changes to improve the im- live within the communities they served,
plementation of the Regulation. resulting in a lack of strong direct links
to or deep knowledge of the commun-
91. Within these parameters, I have con-
ities they police. Given the emphasis on
sidered some ways in which the issues
community-based policing, I believe it
regarding street checks intersect with po-
is beneficial to have police officers hired
lice practice more generally. To this end,
to work in the community in which they
I have made some observations and rec-
live, and I make a recommendation that
ommendations in the areas of commun-
efforts be made by police services to hire
ity policing, partnerships with Indigen-
people who live within the city or region
ous communities, locally-based policing,
they will serve (Recommendation 12.3).
youth education, and diversity and inclu-
sion in police services. 95. Seeing the vital role that community
police officers serve, I recommend that
92. Community policing is a vital part of
they should be engaged in a local com-
policing in Ontario and goes a long way
munity for a sufficient period of time to
 Part 1 • Executive Summary 21

form meaningful relationships within er understanding of the communities

that community (Recommendation 12.4). served. Current statistics demonstrate a
noticeable lack of diversity in policing at
96. Further, based on my consultations all levels, and I believe more must be done
with youth across the province and my re- to ensure that the profession is represent-
view of Saskatchewan’s K-12 rights edu- ative of Canadian society.
cation program, I recommend that there
be a similarly robust curriculum in On- 99. Having a diverse police service alone
tario schools to teach youth about: their will not ensure stronger police–com-
rights and responsibilities; Indigenous munity relations or automatically solve
and Black history; and information about all the concerns raised in this report. It
the Regulation and its operation (Rec- should be recognized that police culture
ommendation 12.5). is a powerful force that can have a strong
impact on all officers – regardless of ra-
cial identity, sexual orientation, gender or
Community policing is a vital Indigeneity – compelling them to adopt
part of policing in Ontario and the prevailing, hierarchical norms of the
goes a long way to establish and organization.
maintain the strong police– 100. I make a range of recommen-
community relations essential dations to address this issue, including
for building public trust in conducting periodic surveys and reviews,
police. and developing diversity and inclusion
strategies (Recommendations 12.6, 12.7,
12.8, 12.9, 12.10, 12.11, 12.12, 12.13 and
97. Finally, part of the perception of dis- 12.14).
crimination in regulated interactions may
result from the fact that the police officer
requesting identifying information may
be of a different racial background than
the person to whom the request is made.
I believe that a diverse, inclusive police
service, at all ranks, will address this con-
cern and make a valuable difference.

98. I know that diversity and inclusion

has a range of tangible benefits in poli-
cing, including dispelling myths and
stereotypes, bringing in new perspec-
tives, building connections to diverse
communities and engendering a deep-
 Part II
Background
 Chapter 1
Introduction
 Chapter 1 • Introduction 27

1. For decades, various police services questioned. Young men simply playing
in Ontario have utilized the practice of basketball were stopped and collectively
street checks, sometimes referred to as asked to provide their identifying infor-
“carding” (in reference to the cards on mation.
which the information is recorded), as
5. What was once a useful investiga-
a means to gather personal information
tive tool became an unfocused practice
from citizens who police officers suspect
that was disproportionately applied to
may be involved in criminal activities.
the most marginalized communities and
2. This targeted practice, which was used against the most disadvantaged people. It
as a crime prevention measure, was wide- was conducted without any measurement
ly viewed by the policing community as a of its effectiveness, including its effective-
valuable intelligence gathering tool in the ness as a crime prevention tool. Instead
fight against crime. of capturing people involved in crimin-
ality, this tool captured and recorded the
3. Over time, street checks evolved into identity and personal information of hun-
a general, uncontrolled practice that did dreds of thousands of individuals who did
not have the checks and balances required not have any criminal history. In essence,
to ensure its usefulness. The very defin- it amounted to a general documentation
ition of the term “street checks” became of anyone the police felt was suspicious.
vague. Different police services within That subjective suspicion varied greatly
Ontario ascribed different police practices with each police officer. To make matters
to the term and, in many police services, worse, the system had no fair, objective
the number of street checks conducted process for individuals to have their street
became a measure of officer performance. check records removed or nullified.
As a result, police officers were incentiv-
ized to engage in poor practices. 6. Because of the nature of various po-
lice records management systems, as well
4. The degree to which the practice de- as the access and exchange of information
volved became, at times, quite ridiculous. between police services, many innocent
In order to meet the required quotas, the individuals’ reputations and lives were
bar for suspicious behaviour was lowered, tarnished as a result of this practice.
and then dropped entirely. I was in-
formed by police stakeholders that some 7. During my consultations, these points
police officers recorded the names and were poignantly captured in a submission
birthdates obtained from tombstones to the Review by a retired deputy chief
to submit as street checks. Groups of of police of one of the 12 largest police
young people on their way to school were services outside of Toronto. He stated the
stopped and asked for their identifying following:
information, sometimes with only the
I absolutely despise the manner in
racialized members of the group being
28 The Independent Street Checks Review

which this once useful tool has evolved. 8. During my consultations, I met with
In my day – you know, the neo-Juras- police officers at all levels as well as from
sic period of policing – we had “sus- small, medium and large police services
pect cards”. These were filled out and throughout Ontario. The message deliv-
entered police files only if officers ered to me in those meetings was con-
checked a person who had a criminal sistent. The practice of street checks was
record, or was on probation or parole. originally intended to be an investigative
They were an effective tool in putting a tool to capture the information of people
person (who had a documented crim- who had a criminal record, were on pro-
inal history) in a particular place at a bation or parole, or were suspected of
particular time. Many new investiga- being involved in some type of criminal
tive leads were generated as a result. activity. The majority of the police leaders
The cards were never used for anything concurred that this practice was once an
else that I was aware of. effective one. The information obtained
in these encounters was useful in tracking
I am very disappointed (but not individuals involved in criminality as well
shocked or even surprised) to see trad- as placing a person in a particular location
itional police and civic leaders who are at a particular time. As a result, new in-
stubbornly defending the carding sys- vestigative leads were generated.
tem. This controversy could easily have
been virtually eliminated if the police
had sat down with the community and Because of the nature of vari-
talked openly. Perhaps a joint police/ ous police records management
community panel could have navigat- systems, as well as the access
ed the issues into a system that would
and exchange of information
have worked for everyone.
between police services, many
When I was a young officer, we learned innocent individuals’ reputa-
a great deal from the actions of more
tions and lives were tarnished
senior officers who we perceived as
“good” or “effective models”. We never as a result of this practice.
received formal instruction on effective
patrol at Police College or through the 9. However, the practice eventually
police service itself. But we did receive evolved from targeted inquiries of people
the informal street policing message suspected of criminal activity to inquiries
loud and clear that to be really effective of people who simply looked suspicious
you had to stop everything that moved and, eventually, to completely random in-
after midnight and particularly in low- quiries. This latter practice is what most
er income areas. I think that particular people think of when they think of “card-
practice is also alive and well. ing”.
 Chapter 1 • Introduction 29

10. In practice, the people who were sub- 14. The practice of carding must be
jected to these street checks were not ne- placed in its historical context. Modern
cessarily reflective of the resident popula- day policing in Canada is based largely on
tions of the communities where they lived. the principles of Sir Robert Peel, former
In essence, the end result was significant Prime Minister of the United Kingdom
levels of disproportionate application to and creator of the Metropolitan Police
marginalized, racialized and Indigenous in London, and are captured in his nine
people. To many of these people, carding Principles of Law Enforcement, 1829.
was not viewed as a completely random For the purposes of this Review, the first
collection of information but rather a fo- four, as well the seventh of those princi-
cused collection of their personal infor- ples bear repeating:
mation despite the fact that the majority
1) The basic mission for which police
of them had no criminal involvement.
exist is to prevent crime and disorder
11. The disproportionate collection of as an alternative to the repression of
identifying information from Indigenous, crime and disorder by military force
Black and other racialized communities and severity of legal punishment.
led to a loud outcry from a wide cross-sec-
2) The ability of the police to perform
tion of people and groups throughout the
their duties is dependent upon public
province of Ontario, who called for a ban
approval of police existence, actions,
on the practice of carding.
behaviour and the ability of the police
12. Some people argue that the dispro- to secure and maintain public respect.
portionate collection of street check
3) The police must secure the willing
data indicates a discriminatory practice.
cooperation of the public in voluntary
Others argue that the numbers reflect
observance of the law to be able to se-
other factors, such as the nature or loca-
cure and maintain public respect.
tion of calls for service and the compos-
ition of the people on the street available 4) The degree of cooperation of the
to be questioned. public that can be secured diminishes,
proportionately, to the necessity for
13. This report will not answer the ques-
the use of physical force and compul-
tion of why people were stopped dispro-
sion in achieving police objectives.
portionately, because the answer to that
question has not been conclusively deter- 7) The police at all times should
mined. This report will study in depth the maintain a relationship with the pub-
Government of Ontario’s recent efforts to lic that gives reality to the historic
regulate street checks and address ways to tradition that the police are the public
ensure that street checks are conducted and the public are the police.9
fairly and properly.
15. The police are the only members of
30 The Independent Street Checks Review

the public who are paid to give full-time 20. As will be addressed in this report, the
attention to the duties which are incum- answers are not that simple – particularly
bent on every citizen to protect and pro- as the large reduction in the number of
mote the community’s welfare. street checks occurred years before 2018
and the Regulation only came into effect
16. These principles of Sir Robert Peel re- in 2017.
main the guiding principles of policing in
Canada and most other Commonwealth
jurisdictions, and are the key principles There is a critical balance to
which differentiate a police service from be struck between the interests
the military. of community safety and the
17. A consistent thread throughout these protection of civil liberties and
principles is the importance of securing human rights.
and maintaining the respect and trust of
the public. In other words, according to 21. The police have an important and
Sir Robert Peel, the legitimacy of police legitimate role and duty to serve and pro-
authority rests upon establishing the pub- tect the safety of the community. To do
lic’s trust in the police as an institution. this important work, they must be able to
Without the public’s trust, there is no interact with the public, gather informa-
confidence in the legitimacy of police au- tion and conduct investigations to prevent
thority. It is within this contextual frame- and solve crimes. But there is an equal-
work and historical background that the ly important concern on the part of the
practice of street checks will be examined. public, who have a constitutional right to
18. Because of the lack of any persua- walk the streets freely and without being
sive evidence that random street checks unreasonably impeded by the police who,
served any useful purpose, coupled with in their professional role, act as an arm of
the negative publicity surrounding the the state.
practice, most police services cut back or 22. While properly conducted street
eliminated random street checks long be- checks are a legitimate investigative and
fore street checks became regulated. intelligence gathering tool, safeguards
19. At the time of concluding this re- must be put in place to ensure that this
port, Toronto hit its highest homicide practice is not applied disproportionately
rate since 1991. This has led many people against marginalized, racialized and In-
to blame the new Regulation governing digenous communities. There is a critical
street checks and the large reduction in balance to be struck between the interests
the number of street checks for the in- of community safety and the protection
crease in violent crime. of civil liberties and human rights.
 Chapter 1 • Introduction 31

23. This was the aim of the Regula- 29. Chapter 7 Duties Relating to Col-
tion. A consideration and analysis of the lection of Information addresses police
Regulation forms the basis of this report. officers’ duties when identifying informa-
Throughout this report, I examine wheth- tion is requested and collected.
er this objective has been achieved and, if
30. Chapter 8 Inclusion of Collected
not, what we can collectively do to strike
Information in Databases explores the
the proper balance between these two
retention of data collected from street
principles in the context of police–com-
checks conducted both before and after
munity engagement.
the Regulation.
24. I have divided the report into 12 chap-
31. Chapter 9 Training of Police and
ters. After this introduction, in Chapter 2
Public Education examines the current
Street Checks, I explore the definitions
and proposed training on the Regulation
of street checks and carding, the history
provided to police officers, as well as pro-
and evolution of this practice, and its im-
posed public education and information
pact on communities in Ontario, before
on the Regulation and its application.
introducing the new Regulation.
32. Chapter 10 Performance Targets,
25. Chapter 3 Mandate and Methodol-
Policies and Procedures discusses the re-
ogy sets out the scope of this Review and
moval of performance targets under the
how it was conducted.
Regulation and the role of policies and
26. Chapter 4 Policing – Powers and procedures developed by police services
Limits explores civil liberties and funda- boards and chiefs of police.
mental rights of individuals, as well as the
33. Chapter 11 Reports and Compli-
applicable duties and powers of police of-
ance focuses on the reporting require-
ficers and the limits on those powers cur-
ments and compliance mechanisms under
rently recognized by Canadian law.
the Regulation.
27. Chapter 5 Application and Inter-
34. Finally, Chapter 12 Other Policy and
pretation of the Regulation focuses on
Procedural Recommendations to Im-
the circumstances in which the Regula-
prove the Implementation of the Regu-
tion applies and does not apply.
lation looks at several key overarching
28. Chapter 6 Prohibition on the Col- amendments and policy and procedural
lection of Identifying Information dis- changes to improve the implementation
cusses the prohibition on the collection of of the Regulation.
information based on certain prohibited
grounds as well as the prohibition on the
arbitrary collection of identifying infor-
mation.
 Chapter 2
Street Checks
 Chapter 2 • Street Checks 35

Introduction public’s perspective, any police-initiated

1. What are street checks? What is the interaction with a member of the pub-
history and impact of the police practice lic in which a charge is not laid, whether
of conducting street checks? What are random or otherwise, is considered card-
the origins of Regulation 58/16? ing. For the public, carding is predomin-
antly seen as an arbitrary interaction by
2. In this chapter, I answer those ques- the police with the public.
tions. I begin by clarifying the various
definitions of street checks and carding, 5. Randomness is the key feature that
before describing the history of the prac- defines carding. Carding refers to situ-
tice and how it has changed over time. I ations where a police officer randomly
then explore the impact of street checks as asks an individual to provide identifying
well as the benefits and costs of this prac- information when the individual is not
tice, drawing on extensive research and suspected of any crime nor is there any
my consultations with police, Indigenous, reason to believe that the individual has
Black and other racialized communities, information about any crime. That iden-
service providers, human rights and civil tifying information is then recorded and
liberties organizations, and other stake- stored in a police records management
holders throughout the province. Finally, system or database. Throughout this re-
I introduce the history and current frame- port, the term “carding” will be used to
work of Regulation 58/16, outlining some describe this type of scenario.
of the complexities of the Regulation and 6. Carding is not the same as what police
its evolution, before turning to the origins services commonly refer to as conducting
of this Review. street checks, although the two terms
have erroneously become synonymous.
What is a Street Check?
7. Historically, street checks included
3. It became apparent during consulta-
interactions between police and individ-
tions with both members of the public
uals beyond random requests for identi-
and police stakeholders, as well as from
fying information. For example, simple
a review of media coverage, that there
observations of individuals made and
is a widespread misapprehension of key
recorded by police officers without any
terms. Parties are debating the relative
communication or interaction with the
merits of carding or street checks without
individual were captured in the records
having a common understanding of what
management system as a street check. If
those terms mean.
an individual was stopped for a traffic
4. Members of the public are concerned violation and a record was made that the
about carding, and many people have person had a gang tattoo or was wearing
asked for carding to be banned. From the gang colours, it would qualify as a street
check. If a police officer asked if a person
36 The Independent Street Checks Review

needed assistance, it could be considered police service is defending the continued

a street check. practice of carding. That is not the case.
Few, if any, police services continue to
8. Compounding the problem is the fact
support widespread collection of identify-
that the term “street check” is not even
ing information from people not suspect-
used consistently between police services.
ed of involvement in crime, for the simple
Among police services, a “street check” is
purpose of creating a police database. In
the general term used for interacting with
my view and in the view of many police
members of the public (for a variety of
services I consulted with during this Re-
purposes) and the subsequent recording
view, carding is a practice that no longer
of information obtained from this inter-
has any place in modern policing.
action in a database. Police have had their
own terms or titles to label this practice
and process over the years. Moreover, Carding is not the same as
each police service utilizes proprietary what police services common-
records management systems (RMS) to ly refer to as conducting street
record and store collected information. checks, although the two terms
The “street check” or “regulated inter-
have erroneously become syn-
action” module in those RMS allow for
police–public interactions to be record- onymous.
ed and stored. The types of police inter-
actions that qualify to be inputted into 11. Police services, however, do support
that module as street checks can vary be- collecting and recording identifying in-
tween police services. For many services, formation in legitimate police inter-
street checks were a catch-all category for actions because that information can as-
a multitude of different types of informa- sist in performing lawful police functions.
tion.
History of Street Checks and
9. To distinguish carding from street
Carding
checks, for the purposes of this report, I
will loosely refer to a street check as be- 12. The practice by law enforcement of
ing information obtained by a police of- asking for identification is a longstand-
ficer concerning an individual, outside of ing one, and its purpose and effects vary,
a police station, which is not part of an based on the historical perspective from
investigation. Carding constitutes a small which it is viewed. In some communities,
subset of what falls under the overarching it is simply viewed as an innocuous prac-
street checks umbrella. tice. It is seen as one of the many tools of
law enforcement, whereby police officers
10. When a police service defends the proactively collect the identifying infor-
continued use of street checks, many mation of various individuals within their
members of the public believe that the community who are either unknown to
 Chapter 2 • Street Checks 37

the police or viewed as suspicious and, at on Aboriginal Peoples. The pass system was
some point in time, may be involved in intended to keep outsiders from entering
some form of crime. reserves to conduct business with In-
digenous persons without the permission
13. To the policing community, this prac- of the Indian Agents. Similarly, Indigen-
tice is viewed as a legitimate form of in- ous people were not permitted to leave
telligence gathering, which is essential to the reserve without the permission of the
maintain a safe and peaceful community. Indian Agents.11
Throughout North America and Western
Europe, as well as various other Com-
monwealth countries, different variations
of this practice are utilized by law en-
Carding is a practice that no
forcement agencies. longer has any place in modern
policing.
14. Historically, Indigenous, Black and
other racialized communities have had
different perspectives and experiences 17. Indigenous people caught without a
with practices such as street checks and pass were either incarcerated or returned
carding. to their reserves. The pass system re-
15. From the perspective of a large seg- mained in place for nearly 60 years, con-
ment of the Black community, the his- trolling and curtailing the movement of
torical origins of the random indiscrim- Indigenous people off reserves.12
inate requesting of personal identifying 18. During my consultations across the
information by the state is analogous to province, participants from Indigenous,
the historic practice of the issuance and Black and other racialized communities
mandatory enforcement of slave passes. shared with me these historical perspec-
Such passes were issued by slave owners tives. They noted that random carding
to allow slaves to leave for a specified time in its current form shared certain public
to go to a limited area and had to be pro- shaming and fear-inducing characteris-
duced on request.10 tics with these historic practices by show-
16. During my consultations, Indigenous ing Indigenous, Black and other racial-
communities in Ontario voiced a simi- ized people that their presence in certain
lar concern about the practice of random spaces was always in question.
street checks and its impact. Many lik- 19. Within Canada, the modern day
ened the practice to the historic Off-Re- practice of street checks can be traced to
serve Pass System instituted by the then the years following World War I, when
Canadian Department of Indian Affairs the Royal North-West Mounted Po-
in 1885. This practice was highlighted in lice (RNWMP) began recruiting secret
the 1996 Report of the Royal Commission agents to track subversive individuals.13
38 The Independent Street Checks Review

When the RNWMP joined forces with 22. Similarly, the Ontario Provincial Po-
the Dominion Police to form the Royal lice (OPP) traces its practices to the im-
Canadian Mounted Police (RCMP) in plementation of contact cards in 1976.
1920, the practice continued.14 Agents These cards captured information such as:
were tasked with tracking whether any name, date of birth, sex and race; whether
labour organizations had Bolshevik ten- the individual was a passenger, pedestrian
dencies.15 Similarly, during World War or suspect; and any vehicle information.
II, the RCMP relied on informants and I heard that the evolution of the OPP’s
agents to advise them of any activity that practice was largely focused on vehicle
could be construed as pro-Nazi.16 stops rather than pedestrian stops.

20. The practice then evolved in slight- 23. The intensification of carding in To-
ly different but parallel ways across the ronto, which ultimately sparked much
province of Ontario, ultimately leading of the controversy around the practice,
to a point where individual police officers began when the Toronto Police Ser-
were empowered to collect information vice instituted the Toronto Anti-Vio-
for intelligence purposes at their discre- lence Intervention Strategy (“TAVIS”)
tion. and used what were then known as “208
cards” in an effort to reduce the level of
21. In Toronto, for example, the institu- gun violence.22 This was in response to
tionalized process of street checks, which an unprecedented spike in gun violence
has colloquially been called “carding”, across Toronto in 2005. The year includ-
began in 1957 when police services were ed the murders of Livvette Olivea Mil-
amalgamated to create the Metropolitan ler and Jane Creba, and the shooting of
Toronto Police Force.17 The practice of four-year-old Shaquan Cadougan. It was
street checks, as it was then called, was subsequently labelled “The Year of the
aimed at finding information on persons Gun” and culminated in 87 murders, 52
of interest to assist detectives.18 Offi- of those by gunfire.23
cers recorded information about these
subjects on “Suspect Cards”, which were 24. TAVIS had teams of officers specif-
also known as “R41 Cards”.19 Police then ically policing high-crime and high-risk
forwarded those cards to detectives.20 neighbourhoods in an intentionally vis-
Initially, these checks were intended to ible manner. Any interaction that took
be targeted, not random. Police officers place when TAVIS was in force consti-
specifically sought out information about tuted a valid reason for completing a 208
persons of interest to detectives.21 Over card, which widely expanded their use.
time, police officers were given more dis- Over time, the practice became colloqui-
cretion to investigate people on the street ally known as “carding” and evolved to no
and the practice gradually expanded. longer target persons of interest to detec-
tives, but rather anyone who the police
 Chapter 2 • Street Checks 39

deemed “of interest” during the course of cluding the new and growing use of com-
their duties. puters and electronic records manage-
ment systems by police services – allowed
25. The TAVIS initiative resulted in an
for information to be collected, stored and
increase in the number of times that
retrieved in an unprecedented manner.
individuals were stopped and asked to
provide identifying information. For the 28. Many police services used street
most part, the people were not acting checks, in addition to traffic tickets and
suspiciously nor were they suspected of other indicators, to measure officers’ job
having committed any crime. While pur- performance. There is a strong likelihood
suing the laudable objective of reducing that performance measurement provid-
violent crime, the exercise of coercive po- ed an incentive for some officers to stop
lice powers strayed further and further and question individuals in order to boost
from its original scope. their performance statistics. During my
consultations, I heard from police offi-
cers that the pressure to undertake street
What began as a legitimate checks was intense. This pressure was so
police practice became one with extraordinary that I heard of at least one
instance where an officer collected names
high potential for abuse.
from tombstones in a cemetery and iden-
tified them as people that they had street
checked in order to meet their perform-
26. Over time, other police services also
ance targets. These examples crystalized
intensified their carding practices, giving
for me that what began as a legitimate
officers greater discretion to stop individ-
police practice became one with high po-
uals and record information for general
tential for abuse.
intelligence gathering purposes. While
TAVIS is an extreme example that drew The Impact of Carding
much media attention, some variation of
carding appears to have been part of the 29. The impact of carding is multifacet-
policy of most police services in Ontario. ed. Media coverage, advocacy movements
That said, many police services did not from a range of organizations and critical
view their practice as discriminatory or public conversations have highlighted the
arbitrary, and some police services argue many dimensions of this practice.
that they have been drawn into a situation
that was not of their own making. Benefits of Carding
30. Proponents of random carding argue
27. The Year of the Gun in Toronto and that the stops may help deter crime,
the increase in violent crime were not the solve a crime that may be committed in
only impetus for increased intelligence the future or provide information that
gathering. Technological advances – in-
40 The Independent Street Checks Review

could help solve a crime that has already person to a gang or organized crime, help
occurred. In that regard, carding is con- track their movements or be used to ob-
sidered both reactive and proactive poli- tain a warrant if the person is found to ac-
cing. company known criminals. Street checks
can also exonerate people from suspicion
31. One of the fundamental principles of a crime by providing them with an alibi
of policing set out in 1829 by Sir Rob- if they were being checked by the police
ert Peel, former Prime Minister of the at the time an offence occurred.
United Kingdom, is to recognize that “[t]
he test of police efficiency is the absence 36. There is also some evidence that a
of crime and disorder, and not the visible targeted stop and search program can be
evidence of police action in dealing with effective in reducing violent crime, par-
them”.24 ticularly at crime “hot spots” – at least
while the program is in place.26 For ex-
32. In other words, a proactive program ample, in New York City, there was an
that prevents crime from happening in increasing problem with gun violence.
the first place is better than a reactive The stop, question, frisk program, in con-
program that helps solve crimes after they junction with other police initiatives, re-
have occurred. moved 50,000 guns from the streets in its
33. The benefits of proactive over react- first three years. It is important to note,
ive policing continue to be recognized, as however, that the rate at which guns were
long as proactive policing does not col- found was extremely low in relation to the
lide with individual rights.25 The colli- number of people stopped and searched.27
sion with individual rights is what distin- 37. Targeted programs involving search-
guishes the lawful practice of conducting es in crime hot spots arguably have been
a street check from the arbitrary practice linked to crime declines not only in New
of carding. York, but also New Orleans and Los An-
34. Even for reactive policing, a police geles.28
database compiled using information ob- 38. A request to “stop and account” or
tained from lawful street checks can be to provide identification is less intrusive
utilized to provide the names of potential than a stop that is made for the purpose
witnesses or suspects. Street checks data of a frisk or search. As a result, a street
can provide information related to gangs check that does not involve a frisk or
or crimes, such as sexual assaults and search is easier to justify. Many argue
break and enters. that, with a request for identification, the
35. Another benefit of the practice iden- intrusion into a person’s time is minimal
tified during my consultations is that a and the benefits of the program outweigh
police database of information obtained the concerns.
from street checks can potentially link a
 Chapter 2 • Street Checks 41

39. Police services that have employed lice because fishing is not allowed at the
random street checks to any degree are sanctuary. When the police responded to
always able to show some productive re- the call, they came upon a car with three
sult of the program. Inevitably weapons male occupants. The men were in posses-
or drugs will be uncovered in some of the sion of fishing rods and indicated that
street checks. Random carding will occa- they were looking for a place to fish.
sionally reveal people who are wanted by
43. Illegal fishing is a by-law infraction.
the police or in breach of bail conditions.
As such, the officer recorded the names
The practice can identify offenders who
of the three males, including that of Min
plague communities in which they do not
Chen. The three men did not have any
reside and where they should not be.
fish so the officer simply issued them a
40. Some research conducted in the caution. The body of Cecilia Zhang was
United Kingdom concludes that the subsequently discovered near the same
reduction in the number of stops and location. A tenant in the Zhang home re-
searches there has resulted in an increase ported that a boy named Min had visited
in the homicide rate.29 North American her there. The information recorded from
police services, along with their European that interaction – which was not a ran-
counterparts, have asserted that street dom street check or even a street check at
checks have solved crimes that might not all – linked Min Chen to the area where
have been solved otherwise. As a result, the body was found, ultimately resulting
there is often a preponderance of public in a confession.31
support for a policy of street checks – at
44. As a result, the Cecilia Zhang case
least among those who are not themselves
does not support the proposition that the
subject to the street checks.30
police should be authorized to randomly
41. I feel that it is necessary for me to request and record identifying informa-
address one specific example that arose tion. It simply reinforces that when iden-
repeatedly during my visits to various tifying information is properly obtained
police services across Ontario. Members during a police investigation, as it was in
of various police services suggested that that case, that information might be use-
a street check helped find the murderer ful to help solve a crime.
of Cecilia Zhang in Toronto. Many have
suggested that the street check in ques- Costs of Carding
tion arose randomly. I wish to clarify that 45. While there are many potential bene-
this is inaccurate. fits to the practice of carding, they come
42. A month before Cecilia Zhang dis- at a tremendous social cost.
appeared, police received a complaint 46. Youth, especially Indigenous, Black
about a suspicious car by a river near a fish and other racialized youth, and youth in
sanctuary. Local residents contacted po-
42 The Independent Street Checks Review

low-income housing, are disproportion- plicants who had good backgrounds and
ately impacted by street checks. “[W] no prior police involvement have been
hile the ‘street’ constitutes a meaningful turned down for employment with police
part of everyday life for many marginal- services because their names showed up
ized youth, their presence and visibility in on a street check database as being asso-
that space makes them ready targets for ciated with gangs. I also heard of other
heightened police surveillance and inter- instances where people who shared the
vention”.32 A street check is often a young same or similar name with people who
person’s first contact with the police. had a long history of street checks were
denied employment opportunities with
47. During my consultations with mem- police services.
bers of the public and police, I heard of
instances where groups of young Black 50. The Toronto Police Services Board
men were asked for identifying informa- acknowledged the impact of street checks
tion while playing basketball. Similarly, I on young people seeking careers in law
heard from Black parents that when their enforcement during its December 15,
children were hanging out with white 2005 meeting, where it found that:
friends, police would only ask their chil-
Because Blacks and other racialized
dren for identifying information and not
persons are more likely to be stopped
their white friends. These first interactions
by the police, they are more likely to
with police have a long-term impact on
have their names recorded on contact
young people. They can establish either
cards. Those contact cards come back
a friendly or an antagonistic relationship
to haunt them during the recruitment
with police that will last a lifetime.
process, when investigators conducting
48. Studies also have shown that people background checks assume that their
who have been asked to stop and provide prior contact with the police “means
identification experience the stop in much they’re guilty of something” – and they
the same way as a stop and search.33 One are eliminated from competition.35
American study concluded that there is a
51. During my consultations, I heard of
negative effect on the physical and men-
another example that also captured media
tal health of those living in areas where
attention. That case involved Ayaan Farah,
there are high levels of pedestrian stops
a 31-year-old Somali Canadian woman
by police.34
who worked for Transport Canada at the
49. Carding and even lawful street checks Pearson International Airport for eight
can also impact employment and educa- years before losing her job in 2014.
tional opportunities. During the consul-
52. Transport Canada revoked Ms. Farah’s
tations, I heard from both members of
security clearance based on information
police services and members of the public
obtained from street checks, specifically
that this was a significant concern. Ap-
 Chapter 2 • Street Checks 43

two allegations provided by the Toronto that his Freedom of Information request
Police Service in 2014. In neither case did produced over 50 pages of personal data
she have a clear and ongoing relationship recorded by the police, mostly during
with anyone engaged in serious crim- traffic stops.39
inal activity, and yet notations on street
55. Street checks have also been used
checks to this effect were retained under
by agencies in non-criminal legal pro-
her name in the police database.36
ceedings. For example, a child protection
53. In August 2016, the Federal Court agency tried to use police contact cards to
of Canada quashed Transport Canada’s prove that parents were drug dealers sim-
decision to revoke Ms. Farah’s security ply because they were often carded in an
clearance. The court found that Transport area frequented by drug dealers.40
Canada failed to give Ms. Farah sufficient
56. The improper use of race as a factor
information to defend herself against al-
in carding and investigating suspicious
legations that she had links to individuals
activities has been recognized by the
with criminal records. The court held that
courts.41 The Supreme Court of Canada
Transport Canada’s decision was both
has held that:
“procedurally unfair and substantively
unreasonable”.37 Racism, and in particular anti-Black
racism, is a part of our community’s
54. In addition to the impact on employ-
psyche. A significant segment of our
ment, street checks and data retained
community holds overtly racist views.
from street checks have prevented In-
A much larger segment subconsciously
digenous, Black and other racialized indi-
operates on the basis of negative racial
viduals from pursuing educational oppor-
stereotypes. Furthermore, our institu-
tunities. One example is the case of Knia
tions, including the criminal justice
Singh, a Black Toronto lawyer. Mr. Singh
system, reflect and perpetuate those
told Toronto Star reporters and advised
negative stereotypes.42
me during my consultations that he has
been carded nearly 30 times.38 In 2014, as 57. In practice, the people who were sub-
part of a criminal law class in law school, ject to carding were not necessarily re-
he requested a ride-along to head out on flective of the resident populations of the
patrol with Toronto police officers. Mr. communities where they lived. Studies
Singh believes that his request was de- and media articles have focused on the
nied because of erroneous, contradictory racial aspect of carding and its dispropor-
and irrelevant information about him tionate impact on Indigenous, Black and
recorded by the police during numerous other racialized communities.43 In the
street checks starting when he was as years 2010 and 2012, a series of articles
young as sixteen. Mr. Singh has no crim- in the Toronto Star discussed the dispro-
inal record. Mr. Singh also told reporters portionate number of Black people being
44 The Independent Street Checks Review

carded. The Toronto Star reported that, by 61. An analysis of the available pre-Regu-
2013, Black people were approximately lation street check data conducted for
17 times more likely to be carded than this Review provided support for these
white people in certain parts of down- findings.  While the Toronto Police Ser-
town Toronto.44 vice performed the highest number of
street checks, the disproportionate rate
58. The 2005 Kingston Data Collection of pre-Regulation street checks involv-
Project, one of the first studies in Can- ing one or more racial groups existed in
ada on racial profiling in policing, con- the data provided by all police services
cluded that Black residents in Kingston analyzed, including Hamilton, Kingston,
were over-represented in traffic stops (2.7 London, Ottawa, Peel, Waterloo, York
times) and in pedestrian stops (3.7 times) and the OPP, as well as Toronto.
compared to their representation in the
city’s general population.45 62. In some regions of Ontario, this
disproportionate rate also relates to In-
59. The Ottawa Police Service’s 2016 digenous people. For Indigenous people
Traffic Stop Race Data Collection Project in Ontario, there is a complex, sometimes
found that Black drivers were stopped 2.3 traumatic history with police. There is a
times more than expected based on the need for greater dialogue and respectful
driving population. Middle Eastern driv- engagement between police and Indigen-
ers were stopped 3.3 times more. Young ous people. Chapter 10 of my March
Black drivers (ages 16-24) were stopped 2017 Report of the Independent Police
8.3 times more than expected and young Oversight Review provided background
Middle Eastern drivers were stopped 12 about the history of Indigenous engage-
times more than expected.46 ment with police, how Indigenous people
60. According to the Toronto Star, in were policed historically and how they
2015, Black people in Brampton and are policed today. The Independent Police
Mississauga were three times more likely Oversight Review focused on reviewing
to be stopped by the police. They formed Ontario’s three civilian police oversight
21% of all street checks, even though they bodies to improve their transparency,
were only 9% of the population.47 In Ot- accountability and effectiveness. Many
tawa, there are reports that racialized men of the concerns I heard throughout my
interacted with police nearly four times extensive consultations with Indigenous
their percentage of the population.48 The communities, youth and leadership across
Black Experience Project, a 2017 survey of the province during this Review, includ-
the Greater Toronto Area’s Black com- ing those related to racial profiling and
munity, found that 79% of young Black the negative history of police-Indigenous
men reported having been stopped by the relations, are consistent with the concerns
police in public spaces.49 I highlighted in Chapter 10 of my previ-
ous report. I underscore them again here.
 Chapter 2 • Street Checks 45

63. Historically, identifying information ception of police legitimacy.

has been collected disproportionately
66. It has been said that “[t]he worst ene-
from some segments of society in cer-
my of effective policing is the absence of
tain areas of Ontario. That fact has been
public confidence”.53 The concern that the
substantiated through numerous stud-
practice of carding discourages cooper-
ies and surveys, and is beyond serious
ation with the police has been supported
contention.50 In fact, the civilian survey,
in several studies.54 People who mistrust
conducted under this Review (which is
the police may become more likely to
introduced in the next chapter, outlined
take matters into their own hands rather
in detail in Appendix E and referenced
than call the police for assistance. 55
throughout the report) noted the dis-
proportionate impact of the practice of 67. When people stop cooperating with
carding on Indigenous, Black and other the police, either by not reporting crimes
racialized communities. or not assisting as witnesses to crimes,
crimes will go unsolved and/or unpun-
64. The fact of the matter is that,
ished.56 There is a risk that the number
throughout the world, police stops are
of crimes uncovered or solved because
conducted disproportionately toward one
of carding could be outweighed by the
or more minority groups in every jurisdic-
number of crimes that are not reported or
tion in which statistics are kept. The stakes
prosecuted because of the negative com-
are very high for members of racialized
munity reaction to the police.
groups when it comes to “random” police
checks because those checks can impact 68. Studies from the United States sug-
their lives in many ways, including their gest that experiencing an inappropriate
educational and employment opportun- interaction with police may desensitize
ities. young people from guilt regarding po-
tential acts of crime, effectively moving
65. Effective law enforcement is
them in a more permissive direction to-
highly dependent on the cooperation of
ward crime.57 Similar results have been
members of the public. The police must
reported in Canada.58 Studies have sug-
be able to act in a manner that fosters this
gested a link between the perception of
cooperation.51 When a segment of society
being discriminated against and gang
believes that it has been unfairly target-
membership.59 More specifically, an ag-
ed by the police, it will de-legitimize the
gressive practice of carding may con-
police in their eyes.52 The low positive re-
tribute to youth violence in Canada.60
sult rate from random police stops means
In other words, carding might not deter
that the vast majority of the people being
young people from committing crime,
stopped have done nothing wrong. That
but actually contribute to an inclination
undermines public trust in the police, ties
toward a criminal lifestyle.
up police resources and erodes the per-
46 The Independent Street Checks Review

69. The practice of carding in Toronto 73. The public and media backlash over
created considerable public resentment, carding caused many police services to
alienation and mistrust of the police in voluntarily curtail or eliminate the prac-
certain parts of the population. The To- tice. By the end of 2014, the Toronto
ronto Police Services recognized this Police Service announced that it would
public dissatisfaction. end the practice of carding. The Toron-
to Police Service currently maintains that
70. In 2012, the Toronto Police Service
legitimate, lawful street checks should be
reviewed the practice of carding, resulting
an intelligence-led process.
in the release of the Police and Commun-
ity Engagement Review (PACER report), The Government’s Response:
which included a series of recommenda-
Regulation 58/16
tions on issues such as data retention and
performance of officers when collecting 74. In response to the public’s concerns
information.61 about carding, the Province of Ontario
enacted Regulation 58/16 under the Po-
71. The results of the review, released lice Services Act, establishing new rules
in 2013, began to curtail the practice of under which police officers may collect
carding. Focus shifted to collecting in- identifying information.63 While other
formation only for a valid public safety provinces, municipalities and police servi-
purpose. As a result, the quality of the ces are grappling with this issue, Ontario
collected information began to improve. is the first province in Canada to create
such a regulation.
72. In November 2014, the Toronto Po-
lice Services Board commissioned a re- 75. The Regulation was filed on March
port from an external consultant, Logic- 21, 2016, but fully came into effect on
al Outcomes. The purpose of the report January 1, 2017.
was to evaluate the community contacts
policy after street check reforms had been 76. The Regulation applies when a police
adopted by the Toronto Police Service officer requests an individual to provide
as a result of the PACER Report.62 The identifying information in certain cir-
Logical Outcomes Report suggested that cumstances, which can include both tar-
people were unaware of the changes to geted and random requests for informa-
the carding policy, and that there was a tion.
perception that the system of carding 77. Targeted requests involve situations
continued to involve an abuse of power where a police officer suspects the possi-
by the police, often conducted based on bility of an offence or that the person will
racial profiling. The report made a num- have useful information about offences.
ber of recommendations, including a ban Random requests involve the collection
on the carding of minors and specific re- of identifying information for the pur-
tention periods for the data collected.
 Chapter 2 • Street Checks 47

poses of creating a database of informa- human rights groups and government

tion without necessarily suspecting the agencies.66
possibility of an offence or having any
83. Following consultations held be-
belief that the person has useful informa-
tween July and December 2015 and the
tion. This latter category is what has trad-
receipt of hundreds of submissions, the
itionally been referred to as carding.
draft Regulation was amended to incor-
78. In either a targeted or random en- porate many of the changes suggested by
counter, there exists a possibility that those stakeholders and the new amended
identifying information will be requested Regulation was filed.
for improper reasons.

79. The stated purpose of the Regulation Any requests for information
is to limit the circumstances under which
are to be made consistently and
police officers can request that individuals
provide identifying information. Any without bias, and in a manner
requests for information are to be made that promotes public confidence
consistently and without bias, and in a while also keeping communities
manner that promotes public confidence safe.
while also keeping communities safe

80. Police services now refer to inter- 84. The Regulation does not prohibit
actions in which the Regulation applies as the practice traditionally referred to as
being “regulated interactions”. I will use carding. It tries to ensure that requests
this term throughout this report.64 for identifying information are not made
81. At the same time that the Regulation arbitrarily or for an improper reason, such
was filed, the province amended another as the individual’s race. It also aims to en-
regulation under which it is expressly sure that any response to the request for
considered misconduct for a police officer information is provided voluntarily.
to unlawfully detain an individual or to
either collect or attempt to collect iden- Issues with the Understanding,
tifying information from an individual Interpretation and Application of the
in a manner that is not permitted by the Regulation
Regulation.65 85. Many police services viewed the issue
of carding as being relevant to the Great-
82. The filing of the Regulation followed
er Toronto Area and specifically the City
a broad process of consultation. A draft
of Toronto, rather than to smaller rural
copy of the Regulation was provided
areas. Police officers in smaller commun-
to various stakeholders including legal
ities noted that they often already know
groups, community advocates and or-
the people within their community so
ganizations, policing partners, academics,
48 The Independent Street Checks Review

there is no need to ask for identifying in- used. For example, “attempt to collect
formation. identifying information about an individ-
ual from an individual” is used in section
86. Police services in smaller commun- 1 and not defined until section 4. In sec-
ities felt that the solutions required to ad- tion 1, the Regulation describes investi-
dress problems in large urban areas may gative detention without actually calling
not necessarily be required or practical for it investigative detention.
small rural areas.
90. Police officers want to better under-
87. The Regulation as it is drafted is a stand when the Regulation applies. For
confusing and somewhat convoluted example, if in a casual conversation with
document to read. It was perceived by a member of the public, the person vol-
most stakeholders throughout my con- unteers their name, does the Regulation
sultations – police and community mem- apply? If a call for service is received from
bers alike – as being too complicated and a member of the public, does the Regula-
hard to follow. They felt it was written for tion apply? Does the Regulation apply if
lawyers, not police officers or community a person is stopped in a motor vehicle and
members. They wanted it to be simpli- the person is suspected of being wanted
fied. Even lawyers who I have consulted on an outstanding warrant? There re-
with agree. mains much confusion as to the circum-
88. For example, the Regulation sets out stances governed by the Regulation. This
the information that a police officer must confusion has resulted in many officers
record in a regulated interaction. The re- being reluctant to engage in conversation
quired information does not include the with members of the public for fear of in-
location of the stop or the age or race of advertently contravening the Regulation.
the person stopped. Only by inference 91. The Regulation requires police servi-
later in the Regulation – when such infor- ces boards to develop policies and police
mation is required to be analyzed – does chiefs to develop procedures to imple-
it become apparent that such information ment the Regulation. As a result, each
must be recorded in every stop encounter. jurisdiction had to examine and analyze
the Regulation and prepare the necessary
materials, as well as develop and obtain
The Regulation as it is drafted the required documents and forms.
is a confusing and somewhat 92. The Ontario Association of Chiefs of
convoluted document to read. Police drafted a model policy and proced-
ure to implement the Regulation. That
model policy and procedure was adopted
89. Some terms are defined in the Regu- in whole or in part by many police servi-
lation after the terms have already been ces.
 Chapter 2 • Street Checks 49

93. Even with a draft model policy and 96. The technology vendors providing the
procedure, police services and police computer programs in which the identi-
chiefs struggled to come up with their fying information is stored in Ontario –
own policies and procedures within the Niche Records Management System and
time allowed. Many police services and Versaterm Inc. – also required time to for-
police services boards felt that they were mulate the modules for the new systems.
given insufficient time to implement the
97. Most police services noted that it was
Regulation by the deadline of January 1,
difficult to implement the Regulation
2017.
when there was no funding or support
94. Furthermore, all police officers who for the development of the policies and
attempted to collect identifying informa- procedures, the training and the develop-
tion were required to be trained on the ment of databases.
Regulation. That meant that training ma-
terials had to be developed and admin-
istered. All of this involved considerable Recommendation 2.1
time and expense.

The Government of Ontario

Many services felt that the should immediately proceed
training was insufficient and with amending the Regulation
the timeframe in which services in accordance with the recom-
mendations made in this re-
had to deliver the training was
port. All amendments must
unrealistic. take into account the time and
resources necessary for police
services to ensure effective,
95. The initial training materials were proper training and implemen-
drafted and administered. The training tation of the revised Regula-
materials were then improved, which tion. The government should
required officers to return for updated allocate additional resources
training. The training was not necessar- to police services specifically
ily consistent between jurisdictions. For for this purpose.
example, some officers were trained on
unconscious bias while others were not.
Many services felt that the training was
insufficient and the timeframe in which
services had to deliver the training was
unrealistic.
50 The Independent Street Checks Review

The Review
98. The Regulation requires the Minister
of Community Safety and Correctional
Services to conduct an independent re-
view of the Regulation. It also requires
that a report on the findings of the re-
view be published no later than January
1, 2019.67
99. This is that Review and report.
 Chapter 3
The Independent Review: Mandate
and Methodology
 Chapter 3 • The Independent Review: Mandate and Methodology 53

Introduction 2) Does the Regulation ensure that

1. The terms of reference outline the police–public interactions are con-
mandate, consultation and review pro- ducted without bias or discrimina-
cess, and reporting requirements of this tion?
Review. 3) Does the Regulation ensure that
2. In this chapter, I explain the require- police–public interactions are done in
ments in the terms of reference and what a manner that promotes public con-
I was asked to do, including the questions fidence and keeps our communities
I was asked to answer. I then describe my safe?
process for conducting the Review, in- 4) Does the Regulation appropriate-
cluding the civilian survey, the consulta- ly reflect the principle that Ontario
tion and outreach process – the meetings takes the protection of human rights
I had with a broad range of stakeholders very seriously and has zero tolerance
in Ontario and beyond – and the in- for racism or any form of discrimina-
depth research. tion based on the prohibited grounds
set out in section 1 of the Human
The Mandate Rights Code?
3. The purpose of this report is to an-
5) Does the Regulation appropriate-
swer certain questions and provide rec-
ly reflect the principle that Ontario
ommendations to improve the Regula-
stands opposed to arbitrary, random
tion. The terms of reference, which are
stops that do not have a clear policing
signed by the Minister and referenced
purpose, and which are done solely
in a legal document known as an Order
for the purpose of collecting identify-
in Council, set out the questions I have
ing information?
been asked and the methods I am to use
to answer those questions. The Order in 6) Are there any recommendations
Council and the terms of reference can be that should be made regarding the
found in Appendix B. content of the Regulation in light of
the preceding questions?
4. The Province of Ontario asked a
number of questions related to both 6. To answer those questions, I must
the content and implementation of the begin by considering the wording of the
Regulation. Regulation itself. I must examine both
what the Regulation does and does not
5. The questions related to the content
do. I also must look at the Regulation’s
of the Regulation are:
intent and determine whether the Regu-
1) Does the Regulation ensure that lation, as it is worded, achieves that intent.
police–public interactions are con-
sistent? 7. There are many more questions relat-
54 The Independent Street Checks Review

ed to the implementation of the Regula- 7) Do the curriculum and related

tion that I must address, including: training materials developed by the
Ontario Police College ensure com-
1) Are there any challenges, oper- pliance with the Regulation?
ational or otherwise, in applying the
Regulation and, if so, what are the 8) Are there any recommendations to
recommendations as to how they be made regarding the effectiveness of
could be addressed? the training developed by the Ontario
Police College?
2) Are the accountability and over-
sight mechanisms in the Regulation 9) What are the approaches police
appropriate to ensure compliance services have adopted to implement
with the Regulation and, if not, what the Regulation?
are the recommendations as to how
10) Are there any recommendations
the mechanisms could be improved?
regarding the approaches police ser-
3) Are there any amendments, policy vices boards should take with regard
and/or procedural changes recom- to the document to be provided to in-
mended to improve the implementa- dividuals following a regulated inter-
tion of the Regulation? action, and is consistency required in
that regard?
4) Are police officers and police
chiefs generally in compliance with 11) Are there any recommendations
the Regulation? regarding the approaches police servi-
ces boards should take with regard to
5) Are police officers and police the retention of information collected
chiefs specifically in compliance with pursuant to the Regulation, and is
the Regulation regarding: consistency required in that regard?
a. the data retention and manage- 12) Are there any recommendations
ment requirements; regarding the approaches police ser-
b. the elimination of performance vices boards should take with regard
targets; to the establishment of age groups
c. the delivery of training; and racialized groups when reporting
on the collection of data, and is con-
d. the development of procedures;
sistency required in that regard?
and
e. the provision of reports? 8. Trying to answer all these questions
has not been an easy task. I have exam-
6) Have police services boards de-
ined the questions for over a year, trav-
veloped policies that comply with the
elling considerable distances and hearing
Regulation?
from many people and organizations.
 Chapter 3 • The Independent Review: Mandate and Methodology 55

The Methodology demics. Their insights and perspectives

9. Under the terms of reference, I am assisted me greatly. I also received a broad
required to consult with the Minister range of valuable written submissions.
Responsible for Anti-Racism. I am also
required to seek the input of the In-
dependent Police Review Director about I needed to know what experi-
any complaints made by members of the ences people have had, what
public regarding the Regulation.68 their concerns were and what
recommendations they would
The Survey
like to see implemented.
10. The terms of reference also required
me to conduct an independent survey of
civilians – collecting and analyzing data – 14. I believed it was vitally important to
to address certain issues. The purpose of hear from members of the public. There
the survey is to determine whether police is a widespread misunderstanding of both
officers and police chiefs complied with the definition and application of street
the Regulation’s limits on the collection checks. As indicated earlier, even po-
of information and the duties related to lice services have used the term “street
the collection of information. checks” to mean different things at differ-
ent times. There has not been a uniform
11. The survey, which was conducted by definition of the term or its application,
the Institute for Social Research at York and this misunderstanding has been com-
University between March 28 and June pounded by a number of media reports,
25, 2018, had two components: a random most of which do not apply a uniform
telephone call survey and an online sur- definition.
vey for visitors to the Street Checks web-
site which was created for the Review. 15. Street checks have not affected all
members of the public in the same way
12. A summary of the survey results is or to the same degree. I needed to know
found in Appendix E. I reference some what experiences people have had, what
of the survey findings throughout this re- their concerns were and what recom-
port. mendations they would like to see imple-
mented.
The Consultations
13. Many stakeholders were consulted, 16. I met with 34 police services in On-
including the public and the police. Spe- tario, hearing from police chiefs, police
cifically, I met with various community officers, police associations and police
groups and organizations, public interest services boards. I believed it was import-
groups, as well as individuals and aca- ant to understand why police officers
56 The Independent Street Checks Review

make requests for identifying informa- – that work with and serve Indigenous
tion, particularly related to the practice communities.
traditionally known as carding. I needed
to understand the objectives of these re-
quests and whether those objectives have
In total, I met with over 2,200
been met.
people, and received over 100
17. A series of 12 public consultations written submissions.
were held in Thunder Bay, Brampton,
Hamilton, Ajax, Markham, Windsor,
London, Ottawa, Sudbury and three lo- 20. I met with leaders, members of elect-
cations in Toronto. During these public ed Chiefs and Council, elders, young
forums, members of the public were able people including students, legal and law
to express their concerns and make rec- enforcement professionals including First
ommendations. I also travelled to Kitch- Nations police officers and police chiefs,
ener-Waterloo to consult with commun- community members, individuals who
ity members. work with organizations serving Indigen-
ous communities and representatives of
18. To meet and talk to Indigenous people Indigenous organizations.
and Black and racialized communities, I
travelled to: Thunder Bay, Toronto, Wind- 21. Hearing directly from Indigenous,
sor, London, Ottawa, Sudbury, Sault Ste. Black and other racialized communities
Marie, Timmins, and North Bay. I also was the best way for me to understand the
travelled to Kenora, Wauzhushk Onigum historic and current issues related to the
(Rat Portage) First Nation, Sioux Look- police practice of street checks.
out and Lac Seul First Nation specifically
22. In total, I met with over 2,200 people,
to consult with the Indigenous commun-
and received over 100 written submis-
ities there. In addition, I consulted with
sions.
members of Black and racialized com-
munities in Kingston, Hamilton, Dur-
The Research
ham, Peel and York Region.
23. The questions to be answered involve
19. As part of my public engagement many different issues.
with First Nations, I wrote to all 134 First
Nations in Ontario, Indigenous political 24. The first is a legal issue. When can
and territorial organizations in Ontario, police officers stop people to request iden-
Indigenous Friendship Centres, Inuit and tifying information, and when can they
Métis groups and communities, as well as not? Answering that question involves
service providers and organizations – in- considering both the common law, which
cluding schools and academic institutions grants police certain powers historically,
 Chapter 3 • The Independent Review: Mandate and Methodology 57

as well as statutory law such as the Crim- of this report and compare them, where
inal Code, various other federal and prov- applicable, to the Ontario experience.
incial statutes including the Police Services
29. As a result of the survey, consultations
Act, the Canadian Charter of Rights and
and research, I believe that I can now
Freedoms and, more specifically, section 9
provide answers to the questions as well
of the Charter which addresses the right
as recommendations that will help both
against arbitrary detention. It also in-
the public and the police understand the
volves determining both the duties and
complexities of the issues surrounding
powers of police officers, and the limits
the practice of street checks and arrive at
on those powers.
the balance required for the police to do
25. Because this Review considers the their jobs without infringing on the civil
longstanding disproportionate use of liberties of members of the public.
street checks against some groups by
some police officers in certain areas of
the province, it was necessary to examine
relevant human rights law, including an-
ti-discrimination laws.

26. The issues related to police officers

requesting identifying information from
members of the public are not unique
to Ontario. Many countries around the
world have faced similar problems and
tried various approaches to solve them.

27. I have examined how other countries

have tried to deal with these issues, in-
cluding the United States, the United
Kingdom and Northern Ireland, Aus-
tralia, Bulgaria, France, Hungary, Japan
and Spain.

28. All of these jurisdictions approach

police stops and requests for identifying
information differently. Some of these
approaches are effective, and some less so.
For the purpose of this Review, it is useful
to see what other jurisdictions have done.
I discuss some of the reforms in the body
 Part III
The Context of the
Independent Review
 Chapter 4
Policing: Powers and Limits
 Chapter 4 • Policing: Powers and Limits 63

Introduction ently, a right “to walk the streets free from

1. To properly understand the Regula- state interference”.71 Young people – in-
tion and the concerns it is intended to ad- deed all people – also “have a right to ‘just
dress, we must take a step back and review hang out’, especially in their neighbour-
certain civil liberties and fundamental hood, and to move freely without fear of
rights of individuals, as well as the applic- being detained and searched on a mere
able duties and powers of police officers whim”.72
and the limits on those powers currently 4. Faced with police questioning on the
recognized by our law. street, a person is generally free to decline
2. In this chapter, I will explore indi- to answer and walk away. While citizens
vidual rights and protections, including may have a “moral or social duty” to assist
the right to walk about freely, the right the police, there is no general legal obli-
against arbitrary detention and statutory gation for them to do so.73 If a person
protections emanating from the Ontario does decline to assist, the officer must al-
Human Rights Code and the Ontario An- low them to be on their way.74
ti-Racism Act. Next, I will turn to the 5. However, the presumptive right to
duties of police officers, with an emphasis walk down the street unimpeded by po-
on both their statutory duties in Ontario lice does not mean that police officers
and their common law duties. I then cannot engage with people and ask them
will examine the circumscribed powers questions. Police engagement with the
of police officers recognized by law, in- community can take many forms. In cer-
cluding the powers of arrest and powers tain instances, the police may have a legal
of detention. Under the powers of deten- duty to engage with people going about
tion, I will outline the statutory and the their business on the street.
common law powers of detention, such
as investigative detention and other com- 6. But an officer can only prevent a per-
mon law powers to stop or detain. I will son from leaving by invoking legal powers
conclude the chapter with a focus on po- of arrest or detention.75 If the person is
lice questioning that does not amount to arrested or detained without proper legal
detention. grounds, their right against arbitrary de-
tention will have been violated.
I. Individual Rights and Protections
7. The right to circulate freely in the
The Right to Walk About Freely community is a common law civil lib-
erty that has echoes in the fundamental
3. Absent a legal rule to the contrary,
constitutional freedoms protected by the
people are free to move about as they
Canadian Charter, in particular the sec-
please.69 In particular, in common law
tion 9 protection against arbitrary deten-
people have “a right to travel unimpeded
tion.
down a public highway”70 or, said differ-
64 The Independent Street Checks Review

8. In a society where the police have at from unjustified state interference.76 This
their disposal excessive powers, there is protection goes beyond physical restraint
a risk of individual liberties being sup- and encapsulates incursions on mental
pressed. On the other hand, in a society liberty “by prohibiting the coercive pres-
where police lack sufficient ability to in- sures of detention and imprisonment
vestigate and prevent criminality, there is from being applied to people without ad-
a risk of lawlessness. It is without dispute equate justification”.77
that both extremes should be avoided.
Striking an appropriate balance between
society’s expectations and the evolution of
the law can be a difficult exercise. In the Policing practices and their im-
context of policing, it is always important plementation must be fair to all.
to start from the foundation that “the po-
lice are the public and the public are the
police”. The legitimacy of one requires
12. When people are detained by the po-
the approval and respect of the other. It
lice, section 10 of the Charter provides
cannot be forgotten that “the public” is an
that they need to be informed of the rea-
all-encompassing term. Policing practi-
son for the detention and their right to
ces and their implementation must be fair
retain and instruct counsel.78 Section 7
to all. A practice that further exacerbates
also affords them the right to remain si-
inequalities or marginalization should be
lent.79
viewed as failing.
13. As I explain below, the police are au-
The Right Against Arbitrary thorized by law to detain people in cer-
Detention tain circumstances. A lawful detention
9. Section 9 of the Charter protects in- is not “arbitrary” within the meaning of
dividuals against arbitrary detentions by section 9 of the Charter, provided the law
the state. itself is not arbitrary.80 If a law authorizes
a detention based on an officer’s discre-
10. What is a “detention” and when is it tion, the exercise of discretion is arbitrary
considered to be “arbitrary”? if there are no criteria governing how it is
11. Not every interaction with or ques- exercised.81
tioning by the police amounts to a de- 14. A detention is unlawful if the police
tention. A “detention” under section 9 of are not exercising a lawful authority to de-
the Charter refers to a suspension of the tain. An unlawful detention is not auto-
individual’s liberty through a significant matically an arbitrary detention; however,
physical or psychological restraint. The all arbitrary detentions are unlawful by
guarantee against arbitrary detention is virtue of section 9 of the Charter.82
intended to protect individual liberty
 Chapter 4 • Policing: Powers and Limits 65

15. A  detention  is arbitrary within the that contribute to inequitable racial

meaning of section 9 of the Charter if it outcomes for all racialized commun-
is “capricious, despotic or unjustifiable”.83 ities, including Indigenous and Black
communities; and
16. Section 15 of the Charter also pre-
vents people from being detained for dis- • advance racial equity and address the
criminatory reasons.84 adverse impact of different forms of ra-
cism, including anti-Indigenous racism,
Other Statutory Protections anti-Black racism, anti-Semitism and
Islamophobia.89
17. In situations that fall short of “de-
tention”, individuals have other statutory 22. The Act also requires the government
protections against arbitrary police con- to set targets and indicators to measure
duct. the strategy’s effectiveness.

23. The Regulation can be seen as part of

Ontario Human Rights Code Ontario’s commitment to achieving the
18. Ontario’s Human Rights Code protects goals of the Anti-Racism Act, 2017 by im-
Ontarians in their interactions with the posing limits on police powers that could
police by requiring that police provide be exercised in a manner inconsistent with
equal treatment with regard to services.85 that Act. It is often said that, not only
Police services are subject to section 1 of must justice be done, it must also be seen
the Code.86 to be done. The manner in which street
checks were being performed by policing
19. Police officers themselves also have
services may have lacked a discriminatory
a statutory duty to uphold the Human
intent but, in the case of some services,
Rights Code.87
there was a disproportionate application.
Ontario Anti-Racism Act, 2017 II. The Duties of Police Officers
20. The preamble of the recently passed
24. Police officers are agents of the state
Anti-Racism Act, 2017 commits the Gov-
and may act only to the extent that the
ernment of Ontario to eliminate systemic
law empowers them to do so.90 The pow-
racism and promote equality, and the Act
ers granted to officers are designed to
itself requires the government to main-
enable them to discharge their duties. It
tain an anti-racism strategy that aims to
is therefore important to understand the
eliminate systemic racism and advance
parameters of those duties and their im-
racial equity.88
pact on police officers’ ability to perform
21. Those objectives are to be accom- their duties and to do their jobs – a large
plished through initiatives designed to: part of which is to respond to the safety
and security needs of the community, as
• identify and remove systemic barriers well as to engage and interact with indi-
66 The Independent Street Checks Review

viduals and the public. circumstances, including stopping and

questioning them. Individuals may have
25. The duties of a police officer are either a right to walk about freely, but they also
set out in a statute or derive from the want to be able to walk about safely.
common law.

Statutory Duties of Police Officers in

Individuals may have a right to
Ontario
walk about freely, but they also
26. The statutory duties of police officers
in Ontario are set out in the Police Services
want to be able to walk about
Act.91 They include preserving the peace, safely.
preventing crime, apprehending offend-
ers and assisting victims of crime. The
Act also recognizes that police officers 30. Police duties and police powers,
have common law duties.92 however, do not necessarily correspond.
There are limits on the powers police
27. The duties of police officers, as out- officers may exercise when performing
lined in the Police Services Act, must be their duties: “[w]hile the police have a
read in light of the declaration of prin- common law duty to investigate crime,
ciples governing the Act, which include they are not empowered to undertake
safeguarding fundamental rights while any and all action in the exercise of that
recognizing the need for sensitivity to the duty”.96 The Supreme Court of Canada
pluralistic, multiracial and multicultural has been unequivocally clear: “the power
character of Ontario society as well as the to detain cannot be exercised on the basis
need for cooperation between the police of a hunch”.97 This falls in line with the
and the public.93 Court of Appeal for Ontario’s reasoning
that “there is no general power to detain
Common Law Duties of Police whenever that detention will assist a po-
Officers lice officer in the execution of his or her
28. The courts have recognized that “the duty”.98
principal duties of police officers are the 31. In other words, “[t]he law imposes
preservation of the peace, the prevention broad general duties on the police but it
of crime, and the protection of life and provides them with only limited powers
property”.94 The police also have a com- to perform those duties”.99 That is be-
mon law duty to “solve crimes and bring cause “[i]ndividual liberty interests are
the perpetrators to justice”.95 fundamental to the Canadian constitu-
29. To discharge their legal duties, police tional order”100 and a “society that values
officers may have a duty to engage with police efficiency and effectiveness above
members of the community in certain other values would be a police state”.101 A
 Chapter 4 • Policing: Powers and Limits 67

balance must be struck. about to commit an indictable offence.103

32. In an effort to strike that delicate 39. Other statutes, such as the Controlled
balance between “adequately protecting Drugs and Substances Act, also specifically
individual liberties and properly recog- set out powers of arrest under similar cir-
nizing legitimate police functions”, Can- cumstances.104
adian law affords the police certain cir-
cumscribed powers to restrict a person’s 40. People who are under arrest are not
liberty and freedom of movement.102 free to go and have an obligation to iden-
tify themselves, although they do have a
33. To properly understand the Regula- constitutionally guaranteed right to re-
tion, it’s important to understand where main silent.
it fits in the current framework of police
41. Police officers must inform the per-
powers recognized by our law.
son that they are under arrest and inform
III. Circumscribed Powers of Police them of certain Charter rights, including
Officers Recognized by Law the right to counsel.

34. While all citizens have a presumptive Powers of Detention

right to walk the streets free from state
interference, police officers are grant- Statutory Powers of Detention
ed limited powers to interfere with that 42. The Criminal Code and other statutes
right. provide for a number of different types
of warrants that can be obtained by the
35. What then, are those powers, as grant-
police, including some that may allow for
ed to them by statute or the common law?
a detention, such as a warrant to obtain
Powers of Arrest a DNA sample or a general warrant that
permits a detention in a manner that is
36. The Criminal Code provides that po- incidental to a search and seizure.105 Cer-
lice officers can arrest a person with or tain legal thresholds need to be met for
without a warrant. officers to obtain a warrant. A person
37. The police can obtain an arrest war- who is the subject of a warrant must com-
rant when they have reasonable grounds ply with the terms of the warrant.
to believe that a particular person has 43. The police also have a number of
committed an offence. other statutory powers to detain, search
38. An officer may also arrest a person or otherwise inconvenience citizens. One
without a warrant if the officer finds the example is the power to control access
person committing a criminal offence to a defined area. For example, there is
or the officer has reasonable grounds to legislation that regulates the public’s ac-
believe the person has committed or is cess to buildings such as courthouses and
68 The Independent Street Checks Review

airports.106 These statutes typically re- liberty to proceed on a public highway in

quire individuals to consent to a search a vehicle is a “qualified liberty” and, thus,
before being able to enter a building.107 is more easily restricted.114
In certain instances, the statute may re-
47. Ontario’s Highway Traffic Act author-
quire people to identify themselves.
izes a police officer to stop vehicles for
44. Another example is the Trespass to highway regulation and safety purposes,
Property Act.108 That Act gives police even when the stops are random.115 How-
and other persons the authority to ar- ever, the detention authorized in this situ-
rest – without a warrant – people who ation is limited by its purpose. The deten-
are believed, on reasonable and probable tion must be at the roadside and be brief,
grounds, to be trespassing.109 Specific- unless the police establish other grounds
ally, people can be arrested if they have for a detention. The police may require
entered the premises without the permis- drivers to produce documents they are re-
sion of the occupier or if they have en- quired to have with them, and they may
gaged in activity on the premises that is detain the vehicle and its occupants while
prohibited under the Act.110 The police checking those documents against infor-
may also arrest without warrant someone mation in police databases. The police
who has made “fresh departure” from the may also assess the mechanical fitness of
premises if the person refuses to give their the vehicle, examine equipment for com-
name and address or the police have rea- pliance with safety standards and, from
sonable and probable grounds to believe outside the vehicle, make a visual exam-
that the name or address given is false.111 ination of the interior to ensure their own
safety in the course of the detention. The
45. It is important to note that the po- Act does not, however, authorize more in-
lice may be appointed as agents by a city trusive examinations or inquiries related
to enforce the Trespass to Property Act in to matters not relevant to highway safety
city housing projects. In those cases, the concerns.116
police are authorized to make inquir-
ies to ensure those in the complex are 48. While a roadside stop is limited to
residents.112 highway regulation and safety concerns,
the mere existence of another purpose
46. Some statutes also grant the police motivating the stop does not render the
particular powers in the context of cer- stop unlawful. In other words, “dual pur-
tain regulated activities, such as driving. pose” stops are permitted. However, for
Unlike the ordinary right of movement the stop to be justified, both purposes
that applies to pedestrians, driving on a must be proper and the stop may not
highway is not a fundamental liberty.113 infringe on the liberty or security of any
While people have a fundamental liberty detained person beyond that contemplat-
at common law “to circulate freely along ed by subsection 216(1) of the Highway
public roadways, particularly on foot”, the
 Chapter 4 • Policing: Powers and Limits 69

Traffic Act (highway regulation and safe- tity if there is also a legitimate traffic-re-
ty).117 lated reason to stop the vehicle.

49. If an officer wishes to stop a vehicle 53. Officers can only conduct a search of
for a purpose that is unrelated to highway the vehicle or seek to identify the passen-
regulation and safety, the officer cannot gers if, in the course of the traffic stop,
rely on subsection 216(1) as a pretext to they develop the requisite legal grounds
achieve this other purpose.118 When road to do so.
safety concerns are removed as a basis
for the stop, then the police powers as- Common Law Powers of Detention
sociated with those concerns cannot be 54. The police also have powers of deten-
summoned to legitimize the stop. Some tion pursuant to the common law.
other legal authority must be found.119 
55. In essence, a “detention” means that
50. That being said, it is permissible for a person is not free to go. In these cir-
police to conduct a traffic stop to gather cumstances, as in the case of an arrest,
intelligence in an investigation of crim- the person has the right to be informed
inal activity. The courts have recognized of their right to counsel and of the reason
that gathering intelligence falls within the for their detention.123 The person con-
ongoing police duty to investigate crim- tinues to have no obligation to speak to
inal activity.120 Again, driving is a highly the police.124
regulated activity that can be more easi-
ly restricted than walking down a public 56. The main police detention power at
sidewalk. common law is the power to detain for
investigative reasons.
51. However, when police officers make a
traffic stop, “the only questions that may Power of Investigative Detention
justifiably be asked are those related to
57. The common law recognizes the
driving offences. Any further, more in-
power to briefly detain an individual for
trusive procedures could be undertaken
investigation if the police have reasonable
only based upon reasonable and prob-
grounds to suspect (as opposed to reason-
able grounds”.121 Similarly, “[r]andom
able grounds to believe) that the individ-
stop programs must not be turned into a
ual is connected to a particular crime, and
means of conducting either an unfound-
that the detention is reasonably and ob-
ed general inquisition or an unreasonable
jectively necessary.125
search”.122
58. This power does not amount to a gen-
52. For example, if a police officer wants
eral police power to detain for investiga-
to identify associates of known gang
tive purposes.126 In other words, police
members, the officer can properly stop
officers cannot detain a person simply
their vehicles to obtain the drivers’ iden-
because they are conducting a criminal
70 The Independent Street Checks Review

investigation. Brief investigative deten- committed by the person or persons

tions are only allowed when it is object- under suspicion. This suspicion may
ively reasonable for the officer to suspect be based on observations, training, and
that the particular individual is linked to experience or information received
a criminal offence.127 from credible sources.

59. This power stems from the police’s

duty to investigate crime and keep the Investigative detentions can-
peace, which in turn requires them to “be not be based on mere suspicion,
empowered to respond quickly, effective-
ly, and flexibly to the diversity of encoun-
speculation, a spidey-sense, a
ters experienced daily on the front lines of guess or a hunch.
policing”.128
63. Another way to say that there are
60. An “investigative detention” has also “reasonable grounds” that justify de-
been described as “a reactive power de- taining a person for investigation is “if
pendent upon a reasonable belief that the the detaining officer has some “articulable
detained person is implicated in a pri- cause” for the detention”.131
or criminal act”.129 Such a detention is
different from a R.I.D.E. program stop, 64. What does that mean? “Articulable
which does not require the police to sus- cause” means a cause that can be justi-
pect criminal activity. fied in a stated explanation. It has been
defined as “a constellation of objectively
61. Suspicion based on reasonable discernible facts which give the detaining
grounds or “reasonable suspicion” must officer reasonable cause to suspect that
be based on something more than a mere the detainee is criminally implicated in
suspicion or a “hunch” and something the activity under investigation”.132 It in-
less than a belief based on reasonable and volves both an objective and subjective
probable grounds.130 standard.133
62. The Kingston Police Service adopted 65. This means that an officer’s subject-
the following definition of “reasonable ive suspicion that an individual is possibly
suspicion” in its bias-free policing pro- engaged in some criminal activity is not
cedure: sufficient. The officer’s suspicion must
“Reasonable suspicion” is suspicion also be objectively reasonable; that is,
founded on a set of articulable facts supported by objective facts.134
and circumstances that would warrant 66. Investigative detentions cannot be
a person of reasonable caution in be- based on mere suspicion, speculation, a
lieving that a violation of the law has spidey-sense, a guess or a hunch.135 That
been committed, is about to be com- is because “subjectively based assessments
mitted, or is in the process of being
 Chapter 4 • Policing: Powers and Limits 71

can too easily mask discriminatory con- they may simply be asking an exploratory
duct based on such irrelevant factors as question that does not necessarily trigger
the detainee’s sex, colour, age, ethnic ori- a detention or right to counsel.142
gin or sexual orientation”.136 While a po-
70. There is no investigative detention
lice officer’s training and experience may
and the person’s Charter rights do not
lead to a certain intuition in detecting
come into play unless there is a signifi-
crime, that intuition should not be based
cant physical or psychological restraint.143
on a person’s physical characteristics, un-
Investigative detention can arise when a
less those physical characteristics match
person is either physically detained (e.g.
a suspect’s description or are relevant in
by handcuffing, placing the person in
some other appropriate way.
a police cruiser or any other manner of
67. Can an officer detain a person on the physical restraint on liberty) or psycho-
basis of suspicious activity, even though logically detained.
the person is not suspected of any actual
offence? The law as it has developed does
appear to allow for a brief detention to
investigate suspicious activities, as long Not every police encounter con-
as the suspicion is reasonably based and stitutes a detention.
there is an articulable cause for the de-
tention.137

68. When a person is the subject of an in- 71. Police officers must be particular-
vestigative detention, the police must ad- ly sensitive to whether their manner of
vise them of the reasons for the detention approaching individuals could result in
in clear and simple language, as well as a psychological detention, thereby trig-
their right to counsel.138 gering the need to make people aware of
their Charter rights.
69. A detention does not necessarily
occur the moment the police engage an 72. I want to reiterate: not every police
individual for investigative purposes.139 encounter constitutes a detention. Police
It’s important to consider “whether or have the latitude to interact with mem-
not the interaction involved a significant bers of the public, even for investigative
deprivation of liberty”.140 A detention purposes, without triggering sections 9
within the meaning of sections 9 and 10 and 10(b) of the Charter. Even in the
of the Charter does not arise every time case of suspects, not every person stopped
a person, even a suspect, is stopped or for the purposes of identification or even
even interviewed for purposes of iden- interview is being detained within the
tification.141 The courts have held that definition of the Charter. As long as po-
when police officers ask people who are lice interactions involve no significant
acting suspiciously to identify themselves, physical or psychological restraint, the
72 The Independent Street Checks Review

Charter rights under sections 9 and 10(b) the individual for focused investi-
are not engaged. The moment at which gation.
an encounter crystalizes into a detention
b. The nature of the police conduct
depends on the circumstances of that par-
including: the language used; the
ticular interaction.144
use of physical contact; the place
Psychological Detention where the interaction occurred; the
presence of others; and the dur-
73. The ancient command “stop in the ation of the encounter.
name of the law” signals a deep-rooted
and widely held belief that a person must c. The particular characteristics
stop when requested to do so by a police or circumstances of the individ-
officer. This belief exists whether or not ual where relevant including: age;
physical restraint is used. physical stature; minority status;
and level of sophistication.146
74. People can be psychologically de-
tained when they are legally required to 76. Because psychological detention is
comply with a police direction or demand not determined subjectively, it is not
(e.g. a roadside breath sample) or when enough for the person who is stopped to
there is no legal obligation to comply with personally believe that they had to com-
the demand but a reasonable person in ply and were not free to go. However,
the person’s position would feel obligated even though the test is objective, the indi-
to do so by reason of the state conduct.145 vidual’s particular circumstances and per-
ceptions “may be relevant in assessing the
75. In cases where there is no physical re- reasonableness of any perceived power
straint or legal obligation, it may not be imbalance between the individual and the
clear whether a person has been detained. police, and thus the reasonableness of any
To determine whether reasonable people perception that he or she had no choice
in the individual’s circumstances would but to comply with the police direc-
conclude they had been deprived of the tive”.147 Ultimately, whether someone was
liberty of choice, the following factors psychologically detained is determined by
should be considered: taking into account all the circumstances
a. The circumstances giving rise of the encounter and the conduct of the
to the encounter as would reason- police.148
ably be perceived by the individ- 77. Sometimes the actions of a police
ual including whether the police officer may reasonably lead to a simple
were: providing general assistance; request being construed as a direction or
maintaining general order; making command.149 For example, people can
general inquiries regarding a par- be psychologically detained when: a po-
ticular occurrence; or singling out lice officer blocks their way, they are sur-
 Chapter 4 • Policing: Powers and Limits 73

rounded by police officers or a police offi- nized the existence of both conscious and
cer holds their possessions. unconscious racial bias within Canadian
institutions, particularly within the crim-
78. A person may also be psychologically
inal justice system.155
detained when an officer’s general inquiry
turns into a suspicion and the nature of
the questioning becomes more like an in-
terrogation.150 The line between general
The effect of race on the psycho-
questioning and a focused interrogation, logical perception of being de-
which amounts to detention, may be dif- tained cannot be ignored.
ficult to draw.151

79. The physical or mental characteristics 83. If a police officer is in doubt as to

of people being questioned can influence whether a person feels they are being
their belief as to whether or not they are psychologically detained, the officer can
free to leave. Factors that may contribute advise the person “in unambiguous terms
to a psychological detention include low that he or she is under no obligation to
intelligence, emotional disturbance, youth answer questions and is free to go”.156
and lack of sophistication.152
84. If there is no significant physical or
80. Our courts have also recognized that, psychological restraint involved in brief
because of their racial identity, some detentions to identify or interview sus-
people feel compelled to obey a police pects, then the protections afforded by
officer when asked to stop and answer sections 9 and 10 of the Charter do not
questions.153 apply. The police have reasonable latitude
81. Whether a “reasonable person” under- to investigate an occurrence without the
stands that they have the ability to walk contact between the citizen and the police
away from a police interaction “is of constituting a psychological detention.157
particular relevance to visible minorities
who may, because of their background Other Common Law Powers to Stop
and experience, feel especially unable to or Detain
disregard police directions, and feel that 85. The common law also affords police
assertion of their right to walk away will additional powers to stop or detain an
itself be taken as evasive and later be individual or otherwise interfere with
argued by the police to constitute suffi- their liberty. Given the “infinite variety
cient grounds of suspicion to justify a of situations in which the police and indi-
… detention”.154 viduals interact”, these situations are not
necessarily pre-defined.158 Whether any
82. The effect of race on the psychologic-
given police action is lawful may well de-
al perception of being detained cannot
pend on a particular set of circumstances.
be ignored. Canadian courts have recog-
74 The Independent Street Checks Review

As police duties evolve, so too may their police officer has a recognized power at
powers. common law.161

86. Well before the enactment of the 88. The first step is to determine if the po-
Charter, the common law had started to lice conduct falls within the general scope
acknowledge an ability to recognize po- of a duty imposed on the police either by
lice powers, which later became known as common law or by statute.
the ancillary powers doctrine and/or the
89. If the conduct does fall within such
Waterfield test, originally stemming from
a duty, the second step is to determine
the English case R v Waterfield.159
whether the conduct can be justified. In
other words, the police are empowered to
Just because it might be useful interfere with individual rights and liber-
for the police to have a certain ties when executing their duties as long
as the interference is justified in the cir-
power does not mean that they
cumstances.
should have that power.
90. In the second step, the court must
strike a balance between the competing
87. The language of Waterfield is help-
interests of the police officer’s duty and
ful to understanding the test. The Eng-
the person’s liberty or other individual in-
lish Courts stated that “it would be dif-
terests. In light of the circumstances, is
ficult… to reduce within specific limits
the police action reasonably necessary to
the general terms in which the duties of
carry out the particular duty? The factors
police constables have been expressed”
to be weighed in the second step include:
and opted instead to consider “what the
police constable was actually doing and 1) The importance of the duty to the
in particular whether such conduct was public good;
prima facie an unlawful interference with
a person’s liberty”.160 In these comments, 2) The extent to which it is necessary
the English court seemed to opine that to interfere with liberty to perform
it was better to look at the specific facts the duty; and
of each case, rather than trying to iden- 3) The degree of interference with
tify a broad police power being employed. liberty.162
Legitimizing the “street check” practice as
it was prior to the Regulation would have 91. Our courts have been careful to recog-
been counter to this principle – provid- nize that, when deciding whether the po-
ing the police with a broad power rather lice have a common law power necessary
than looking at the specific facts of each to their duty, it does not “mean that the
case. As per Waterfield, there is a two-step Court should always expand common law
test to apply when considering whether a rules, in order to address perceived gaps
 Chapter 4 • Policing: Powers and Limits 75

in police powers or apprehended inaction which do not interfere with individual

by Parliament, especially when rights and freedoms”.167
interests as fundamental as personal pri-
vacy and autonomy are at stake”.163 Just Police Questioning That Does Not
because it might be useful for the police Amount To Detention
to have a certain power does not mean 94. As noted previously, the police are
that they should have that power. “We generally free to ask questions of anyone
want to be safe, but we need to be free”.164 on the street, regardless of whether an of-
92. While the police may have powers fence has been committed.168 However,
that are reasonably necessary to perform the person being questioned does not
their duties, it may be more difficult for have to answer and can proceed on their
them to justify the existence and exercise way.169 Unless the officer has grounds to
of a power when they are involved in pre- arrest or detain the person, the officer
ventive policing (proactive policing) as cannot compel the person to remain.170
opposed to investigating past or ongoing 95. Again, a brief stop for the purpose
crimes (reactive policing).165 “[P]roactive of asking questions does not necessar-
policing is in many ways more efficient ily amount to a detention. If there is no
and effective than reactive policing”; how- “significant physical or psychological re-
ever it “must be limited to steps which do straint” involved, then there is no deten-
not interfere with individual freedoms”.166 tion and the protections given under sec-
What has never been allowed by our tions 9 and 10 of the Charter do not apply.
courts is a general power to detain and
question members of the public in the 96. The definition of detention “gives the
general performance of policing duties. police leeway to engage members of the
public in non-coercive, exploratory ques-
93. One example of a police power that tioning without necessarily triggering
has been recognized based on this com- their  Charter rights relating to deten-
mon law test is the power to arrest or de- tion”.171
tain someone to prevent an apprehended
breach of the peace.  The breach must be 97. Prior to the Regulation, some police
imminent and the risk that it will occur services had no clear or consistent param-
must be substantial. The mere possibil- eters related to their members’ ability to
ity of some unspecified breach at some question individuals and request identi-
unknown point in time does not suffice.  fying information when the questioning
“[T]he requisite necessity arises only did not amount to detention.
when there is a real risk of imminent
98. During these interactions between
harm. Before that point is reached, pro-
police and the public, there is potential
active policing must be limited to steps
for abuse that requires proper oversight.172
76 The Independent Street Checks Review

There is also the potential for innocent 104. If an officer has reasonable and
misunderstanding. Both parties to the probable grounds to believe that a person
interaction need to understand the rules has committed, is committing or is about
of engagement. The Regulation seeks to to commit an offence, the officer can ar-
address this gap. rest the person.

Summary 105. If there is no arrest or detention,

an officer has no right to compel the per-
99. Police officers do not have an auto- son to remain. Unless provided for by
matic right to detain a person for ques- statute or the common law, a person does
tioning. In other words, the police can- not have a duty to identify themselves.173
not prevent a person from walking away
unless there are reasonable grounds to 106. Not everyone who is stopped (and
suspect that the person is connected to a not formally detained) by the police will
particular crime and the detention is rea- understand that they have the right to
sonably necessary. proceed on their way without answering
questions.
100. When a police officer reasonably
suspects that a person is connected to a 107. If a person reasonably believes,
criminal offence, the officer may detain even if that belief is erroneous, that they
that person for further investigation. This have no choice but to cooperate with po-
constitutes a valid investigative detention. lice, a psychological detention may occur.
These concerns, if objectively reasonable,
101. Stops for investigative purposes would trigger police obligations to advise
involving brief delays that do not involve the person of their right to counsel and of
significant physical or psychological re- the reason for the detention.
straint do not constitute a detention and
do not trigger rights under sections 9 or 108. Given the inherent power imbal-
10 of the Charter. ance in a police interaction with an in-
dividual, particularly when the person is
102. On the other hand, stops for in- young, suffers from mental health issues
vestigative purposes involving longer de- or is a member of a racialized group, it is
lays that do involve significant physical or especially important for police to ensure
psychological restraint constitute an in- that the person is genuinely cooperating
vestigative detention and trigger section voluntarily.
9 or 10 rights.
109. When a police officer, without
103. Investigative detentions for crimes bias or discrimination, asks an individual
that have been committed or are ongoing to provide information, and the person
must involve a clear link between the per- voluntarily provides information, then
son being investigated and the crime. there is no question that the information
was properly obtained.
 Chapter 4 • Policing: Powers and Limits 77

110. To avoid any issue as to whether

information is being provided voluntarily
and the person does not feel compelled
to comply, the police may consider in-
forming people that they do not have to
answer the questions, and that they are
free to go.
 Part IV
Collecting and Managing
Identifying Information
- Findings and
Recommendations
 Chapter 5
Application and Interpretation of the
Regulation
 Chapter 5 • Application and Interpretation of the Regulation 83

Introduction
Recommendation 5.1
1. Now that we have explored the his-
tory and impact of carding and street
checks, introduced the Regulation, exam- The Regulation should express-
ined certain civil liberties and fundamen- ly state that no police officer
tal rights of individuals, and reviewed the should arbitrarily or random-
applicable duties and powers of police of- ly stop individuals to request
ficers, we can turn to the specific terms of their identifying information.
the Regulation.
4. Given the Regulation’s objective, I
2. This chapter will examine Part I of conclude the chapter by raising two fun-
the Regulation relating to the circum- damental questions that are central to the
stances in which the Regulation applies analysis: do random street checks actually
to an interaction between a police officer work and should random street checks ever
and an individual. In particular, I consider be allowed? I answer these questions by
the general application of the Regulation, drawing on Canadian and international
the meaning of identifying information, experiences and research, as well as my
the categories of collections to which the observations from the consultations con-
Regulation applies and areas where the ducted under this Review.
Regulation does not apply.  Along the
way, I identify certain gaps in its oper- Application of the Regulation
ation, based on the concerns that the
Regulation was intended to address, and Definitions
make recommendations to address those 5. The Regulation applies to attempts to
gaps. collect identifying information from in-
3. Before delving into Part I of the dividuals by police officers if the attempt
Regulation, I note that the Regulation is done for the purpose of: inquiring into
does not expressly stipulate its purpose or offences that have been or might be com-
objective. Since one of its main purposes mitted; inquiring into suspicious activ-
is to prevent arbitrary or random stops of ities to detect offences; or gathering in-
individuals for the sole purpose of col- formation for intelligence purposes. I will
lecting their personal identifying infor- return to these three categories below.
mation, that objective should be expressly 6. “Police officer” is not defined in the
stated at the outset of the Regulation. Regulation but would have the same
meaning as it has under the Police Ser-
vices Act.174 Law enforcement officials
not classified as a “police officer” – for
example, First Nation constables, special
constables, municipal law enforcement
84 The Independent Street Checks Review

officers and auxiliary officers – would not 9. The Regulation applies to attempts to
be covered.175 The Regulation also specif- obtain identifying information about an
ically does not apply to a police officer ap- individual from that same individual.178 It
pointed under the Interprovincial Policing does not prevent attempts to obtain iden-
Act, 2009.176 tifying information about an individual
from a different individual through sur-
7. An “attempt” to obtain identifying veillance or a check of a database. While
information means a face-to-face en- the ability of police officers to obtain
counter during which a person is asked to identifying information in this manner
identify themselves or provide informa- was raised as a concern during our pub-
tion for the purpose of identifying them- lic consultations, this practice would be
selves – whether or not the information virtually impossible to regulate. It is also
is actually collected.177 An “attempt” to not possible to control what people de-
collect identifying information, therefore, cide to say about others or when they are
includes an actual collection of identify- captured by surveillance or other means.
ing information.

8. It also includes a situation where the Identifying Information

police officer decides not to retain the 10. The Regulation does not explicitly
identifying information received after define the term “identifying informa-
having requested it. It was reported that tion”. As already noted, however, an at-
some police officers are not recording tempt to collect identifying information
regulated interactions when the officer is described in the Regulation as an at-
ultimately decided the identifying infor- tempt “to collect identifying information
mation was unhelpful and discarded it. In by asking the individual, in a face-to-face
fact, those situations still qualify as regu- encounter, to identify himself or herself
lated interactions and a record should be or to provide information for the purpose of
made. identifying the individual…”.179

11. What, then, could be considered “in-

Recommendation 5.2
formation for the purpose of identifying
the individual”? This could potentially
Officers should be instructed include the person’s name, address, date
that the requirements of the of birth, employment location, whether
Regulation apply when a po- they have a criminal record, their identi-
lice officer requests identify- fication, such as a driver’s licence, and so
ing information in a regulated on. Even questions such as “where are you
interaction, whether or not the coming from” or “where are you going”
officer retains and records the could arguably be information requested
identifying information. for the purpose of identifying the indi-
vidual.
 Chapter 5 • Application and Interpretation of the Regulation 85

12. The Toronto Police Services Board,

for instance, has defined “identifying in- Recommendation 5.3
formation” in its policy as:
The term “identifying informa-
[A]ny information that, alone or in tion” should be defined in the
combination with other information, Regulation in a way that is sim-
can be used to identify an individual. It ilar to the definition adopted
may include information about an in- by the Toronto Police Service,
dividual’s race, age, sex, sexual orienta- such as:
tion, gender identity, marital or family
“Identifying information”
status, economic circumstances, and
means any information which,
education, medical, psychiatric, psych-
alone or in combination with
ological, criminal or employment his-
other information, can be used
tory.
to identify an individual. Iden-
tifying information includes in-
formation about an individual’s
There should be greater clarifi-
race, age, sex, sexual orienta-
cation in the Regulation as to tion, gender identity, marital or
the meaning of the term “iden- family status, socioeconomic
tifying information”. circumstances, and education,
medical, psychiatric, psych-
ological, criminal or employ-
13. Without a standardized definition, ment history.
the Regulation could be applied inconsis-
tently between jurisdictions. There should 14. The Regulation refers to “asking” for
be greater clarification in the Regulation identifying information.
as to the meaning of the term “identifying
information”, which should be defined 15. As some police services are moving
along the lines established by the Toronto toward the use of body-worn cameras, a
Police Service. captured image could be seen to qualify
as “identifying information”, even though
there is no actual request for information.

16. Nevertheless, the definition of iden-

tifying information should not include
general video surveillance or the inci-
dental photographing or recording of
an individual during an encounter, such
as could occur when an officer wears a
body-worn camera. Otherwise, virtually
86 The Independent Street Checks Review

all interactions between police officers or

and the public would be captured by the
v. the individual from whom the
Regulation, contrary to its intended pur-
officer attempts to collect informa-
pose.
tion is employed in the adminis-
tration of justice or is carrying out
Recommendation 5.4 duties or providing services that are
otherwise relevant to the carrying
The definition of identifying in- out of the officer’s duties.180
formation should not include 19. As indicated in the previous chapter,
video surveillance or the inci- when a person is under arrest or being
dental photographing or re- detained, the Charter affords the person
cording of an individual during important protections including the right
a regulated interaction, such to be informed of the reason for the ar-
as could occur when an officer rest or detention and the right to counsel.
wears a body-worn camera. I, therefore, think it appropriate that the
Regulation does not apply in those cir-
cumstances.
Explicit Exceptions to the Application
of the Regulation 20. Similarly, I see the three last excep-
17. Importantly, the Regulation specific- tions listed above as appropriate and
ally excludes investigations of an offence believe that applying the Regulation to
from its application. I will return to this those situations would be unworkable.
exception below. They are also not one of the problematic
situations that the Regulation was in-
18. The Regulation also specifically pro- tended to address.
vides that it does not apply if:
21. With regard to the first exception (i.e.
i. the individual is legally required instances where an individual is legally
to provide the information to a required to identify themselves), I think
police officer; it important to point out that such situ-
ations are quite common, particularly
ii. the individual is under arrest or
in cities and semi-public spaces. As de-
is being detained;
scribed in the previous chapter, police
iii. the officer is engaged in a co- officers can rely on legislation such as
vert operation; certain provisions of the Highway Traffic
Act, the Liquor Licence Act, the Trespass to
iv. the officer is executing a war- Property Act or the Criminal Code to ob-
rant, acting pursuant to a court tain identifying information.181
order or performing related duties;
 Chapter 5 • Application and Interpretation of the Regulation 87

22. In the case of the Trespass to Prop-

erty Act, the police enter into agreements Recommendation 5.5
with the landlords of certain properties
whereby the police are able to act as the The Province of Ontario should
landlords’ agents and, in that role, they consider revising other Acts
are entitled to request identification from empowering police to obtain
individuals on these properties to ensure identifying information to
that they are not trespassing. These prop- contain similar protections as
erties can potentially include subway or those contained in this Regula-
bus stations, parks, community centres, tion.
malls and community housing complexes.
25. One particularly notable exception
23. During my consultation with the that falls under this category is the iden-
Provincial Advocate for Children and tification of a person operating a motor
Youth, I heard that this is an issue of con- vehicle. The ability afforded by law to
cern. The reality, however, is that the law randomly stop vehicles for traffic-re-
grants owners of private property the right lated purposes leaves open the concern
to both restrict or allow entry to anyone, about discriminatory traffic stops, which
subject only to the provisions of human is sometimes referred to colloquially as
rights legislation. Those who enter private “driving while Black”. Discriminatory
property, including public spaces on pri- traffic stops constitute racial profiling.182
vate property, such as apartment build- Racial profiling in traffic stops has been
ings, shopping malls or subways, enter on found to exist in several reported cases.183
the basis of an implied license, which is
revocable by the owners of the space. 26. To the extent that the Regulation ex-
cludes situations where a person is legally
24. The alternative to having the police required to provide identifying informa-
enforce the Trespass to Property Act on tion, such as a driver during a highway
these types of properties is to use private traffic stop, it creates a potential for in-
security guards, most of whom do not consistent interactions between the po-
have the same level of training as police lice and the public. Given that driving is
officers or the same level of profession- a highly regulated activity – and properly
al or legal obligations or oversight. So, in so – it is not feasible to subject police–
my view, provided that police officers are driver interactions to the Regulation and
given the level of training recommended allow drivers to not identify themselves to
by this report, I see no problem with the police. As for prohibiting discrimina-
them continuing to enforce the Trespass tory traffic stops, there are already mech-
to Property Act in these types of spaces. anisms in place to minimize the risk of
abuse of the power to stop for traffic-re-
lated concerns.184
88 The Independent Street Checks Review

27. What can be done, however, is to en-

sure that the Regulation applies to re- Recommendation 5.6
quests for identifying information from
passengers in the context of a traffic stop. The Regulation should apply
Many police services have already adopt- to vehicle stops that are not
ed policies or procedures that apply the otherwise exempt from the
Regulation to vehicle stops. Regulation.
28. Because some police services boards
have adopted policies that the Regulation
applies to vehicle stops and others have Recommendation 5.7
not, the Regulation is being applied in-
consistently. The Regulation should specif-
ically apply when identifying
29. The Regulation does not apply when information is requested from
a person is legally required to provide passengers of vehicles during
identifying information or when a per- vehicle stops when the pas-
son is reasonably suspected of commit- senger is not in violation of the
ting or having committed an offence. For Highway Traffic Act, the Crim-
example, the police may lawfully detain inal Code, or any other Act of
passengers in vehicles for investigative Parliament or Legislature.
purposes when they have reasonable sus-
picion that the passenger is connected to Implicit Exceptions to the Application
a crime. of the Regulation
30. A vehicle stop that would qualify as a 31. The Regulation applies only if the at-
regulated interaction would be when the tempt is done for the purpose of: (1) in-
officer requests identifying information quiring into offences that have been or
from a passenger when the officer does might be committed; (2) inquiring into
not reasonably suspect that person of an suspicious activities to detect offences; or
offence. While this may find limited ap- (3) gathering information for intelligence
plication in practice, it would also apply to purposes. Therefore, it does not apply to
the driver of a vehicle if they are not be- other situations where a police officer
ing stopped and asked for identification might need to know a person’s identity,
for a traffic-related purpose or because of such as when providing assistance to
a reasonable suspicion that any other of- that person or attempting to confirm the
fence has occurred – but rather for one of identity of an individual who matches
the purposes covered by the Regulation. the description of a missing person, hu-
man trafficking victim or other victim of
 Chapter 5 • Application and Interpretation of the Regulation 89

crime.185 Similarly, the Regulation does base or module for regulated interactions.
not apply if an officer is simply chatting In certain circumstances, it may also be
with members of the community – in a necessary for the police to record and
way that does not qualify as a regulated store the person’s identifying information
interaction – and discusses their personal in another database in order to be able to
situation without recording the informa- follow-up on the well-being of the per-
tion or having any intention to do so. This son who was checked. This information,
distinction has been recognized by several however, should not be stored in the data-
police services boards in their new poli- base for regulated interactions.
cies.

32. Many police services have adopted Recommendation 5.8

policies or procedures that specify that
the Regulation does not apply to situa-
tions that are intended to foster commun- The Regulation should state ex-
ity relations. While the rationale for that pressly that it does not apply to
qualification is understandable, concerns attempts to confirm the iden-
have been expressed by some members of tity of an individual who match-
the public that this exception could allow es the description of a missing
identifying information to be collected person, human trafficking vic-
and recorded in such situations without tim or other victim of crime.
recourse.

33. For example, is a “well-being check” Recommendation 5.9

actually motivated by a concern for a per-
son’s welfare or is it an indirect attempt
The Regulation should state ex-
to obtain identifying information? In that
pressly that it does not apply
circumstance, the focus of any question-
to interactions that have a
ing should be on the person’s situation
community-building purpose,
and well-being, and only extend to re-
meaning on-duty police con-
questing their identity when necessary.
tact with members of the com-
34. Police officers should not be discour- munity meant to foster posi-
aged from assisting members of the pub- tive relationships and/or assist
lic because of concerns over having to fill members of the public without
out paperwork. The Regulation should gathering identifying informa-
not apply unless the police officer intends tion for an investigative or in-
or intended to record and store the per- telligence purpose.
son’s identifying information in the data-
90 The Independent Street Checks Review

interactions that result from a reason-

Recommendation 5.10 able suspicion that an offence has been or
will be committed (an investigation) and
The procedures developed by interactions where an offence “may have
chiefs of police should ensure been or might be committed” or there are
that identifying information “suspicious activities” that may lead to
requested by police officers in “detecting” offences (an inquiry). In other
social situations or for the pur- words, there is some suspicion justifying
pose of fostering community an inquiry but no “reasonable grounds”
relations or assisting members for the suspicion required for a lawful in-
of the public is not recorded vestigative detention.
and stored in any regulated
interactions police database. Police officers should not be
discouraged from assisting
Investigations, Suspicious Activities
members of the public because of
and General Criminal Activity
concerns over having to fill out
35. As indicated above, the Regulation
paperwork.
specifically does not apply to an at-
tempted collection of identifying infor-
mation made by a police officer for the 39. In the case of “gathering information
purpose of investigating an offence that for intelligence purposes” (the third and
the officer reasonably suspects has been or last category), there is no requirement
will be committed. that there be any semblance of a past or
future offence. I address this category
36. The Regulation does, however, apply below.
to inquiries into suspicious activity and
general criminal activity. 40. I will try to give a concrete example
of how the Regulation appears to be in-
37. As a result, the Regulation applies tended to operate. Imagine the following
when an officer requests identifying in- four scenarios:
formation when generally “inquiring”
into potential offences but not if the of- Scenario One: A police officer sees a
ficer is “investigating” an actual offence man in a deserted alley in the middle
that an officer reasonably suspects has of the night.
been or will be committed.
Scenario Two: A police officer sees a
38. The Regulation does not further de- man in a deserted alley in the middle
fine the terms “inquire” or “investigate”. of the night carrying a crowbar.
Given the above, however, it appears that
Scenario Three: A police officer sees a
the intention is to distinguish between
man in a deserted alley in the middle
 Chapter 5 • Application and Interpretation of the Regulation 91

of the night carrying a crowbar. Behind 44. In the fourth scenario, there are rea-
the man is a car with a broken window sonable and probable grounds to make an
and there is glass on the ground. arrest. The Regulation does not apply.

Scenario Four: A police officer sees a 45. In other words, where a police officer
man in a deserted alley in the middle reasonably believes that a person commit-
of the night breaking a car window ted an offence, an arrest may be made.
with a crowbar. Where an officer reasonably suspects that
a particular person committed an offence,
41. In the first scenario, without more in- that person may be briefly detained for
formation (e.g. a rash of recent break-ins investigation (an “investigative deten-
in the area), there is no reason to suspect tion”) without triggering the Regulation.
the person of any criminal activity. Re- Where there is reasonable suspicion that
questing this person’s identifying infor- an offence has been or will be committed
mation would be random and not based and the officer requests identifying infor-
on any objective criteria. mation from any person in the course of
42. In the second scenario, there is no investigating that offence (i.e. not only
reasonable suspicion that an offence has the person reasonably suspected of having
occurred or is about to occur, simply be- committed the offence), the Regulation
cause the person is carrying a crowbar. still does not apply. Where, however, po-
There is a reason for the police officer to lice are inquiring into potential offences
be suspicious because it is unusual for a or suspicious activities without having
person to be carrying a crowbar in an alley any “reasonable grounds to suspect” that
at night. That suspicion is more than mere an offence has been or will be committed,
suspicion because there are objective and the Regulation applies if identifying in-
credible reasons to make an inquiry. The formation is requested.
officer has a duty to inquire. The police
officer can ask the person why he is carry-
Recommendation 5.11
ing a crowbar in an alley at night without
physically or psychologically detaining
the person. The Regulation applies to this The Regulation should speci-
situation if identifying information is re- fy that a regulated interaction
quested. should take no longer than is
reasonably necessary to satisfy
43. In the third scenario, there are reason- the purpose of the interaction,
able grounds to suspect that an offence and that police officers should
has occurred and that this person is con- not prolong a regulated inter-
nected to the offence. A police officer can action in the hope of acquiring
briefly detain the person to investigate. reasonable suspicion to detain.
The Regulation does not apply.
92 The Independent Street Checks Review

46. There are potential problems even there is reason to believe that the person
when a verifiable offence is being inves- approached may potentially have some
tigated. For example, the police could rely involvement in the matter, either as a sus-
on the fact that they are conducting an pect or witness.
investigation to request identifying infor-
mation from people who do not appear to Recommendation 5.12
have any connection to the offence being
investigated, whether as a suspect or po- Remove subsection 1(2) of the
tential witness. An “investigation” should Regulation and replace with:
not be used as a blanket authorization to
collect personal data. Despite subsection (1), this
Regulation does not apply with
respect to an attempted collec-
The police have never had at tion made by a police officer for
the purpose of investigating an
their disposal a power to detain
offence the officer reasonably
and question members of the suspects has been, is being
public in the general perform- or will be committed, and the
ance of policing duties. person from whom the identi-
fying information is requested
appears to have some connec-
47. It is important to note, specifically in tion to the offence whether as
Toronto, that the vast majority of street a suspect or as someone who
check interactions between the public has helpful information about
and the police were categorized under the the offence.
umbrella of a general investigation. This
has no true meaning and lacks any clarity
on what was actually being investigated. “Suspicious” Activities
As noted in the previous chapter, the 49. I consider further below whether the
police have never had at their disposal a Regulation should apply to random re-
power to detain and question members of quests for identifying information. Here,
the public in the general performance of I consider the Regulation’s application to
policing duties. Often criticism centers inquiries into “suspicious activities”. This
on the notion that carding was removed terminology suggests that the inquiries
as an acceptable police practice. In this are not random. Rather, an individual
context, nothing was taken away. would be targeted not simply because
they happen to be walking down the
48. The Regulation should specify that re- street or in a certain area at a particular
quests for identifying information should time, but rather because they are engaged
be made during investigations only where in some form of suspicious activity.
 Chapter 5 • Application and Interpretation of the Regulation 93

50. However, some stakeholders are con- Some police services have included in
cerned that the reference to suspicious ac- their training materials that responses to
tivities could be interpreted very broadly calls for service from the public are not to
and include behaviour that is simply out be considered regulated interactions.
of the ordinary due to an individual’s
54. It is critical that there be clarity as
cognitive impairment or destitution, or
to what constitutes suspicious activities,
simply because it is outside usual societ-
given that what is considered suspicious
al norms. One stakeholder noted that an
can be highly subjective.
earlier directive of one police service de-
fined suspicious activity as “behaviour that 55. As indicated earlier in Chapter 4,
can be characterized as unusual or out of pursuant to case law, suspicion based on
place”. reasonable grounds or reasonable suspi-
cion means something more than a mere
51. That definition is too broad. For ex-
suspicion or a hunch and is something
ample, there is a “race out of place” con-
less than a belief based on reasonable and
cern relating to minorities being more
probable grounds.189
likely to be searched in predominantly
white neighbourhoods.186 56. The Kingston Police Service adopted
the following definition of “reasonable
52. Police officers may view anything as
suspicion” in its procedure regarding bi-
suspicious. Even contradictory actions
as-free policing:
have been deemed by police officers to be
suspicious, such as not making eye con- “Reasonable suspicion” is suspicion
tact with police officers or staring at po- founded on a set of articulable facts
lice officers, and driving too fast or driving and circumstances that would warrant
too slow.187 In one court decision involv- a person of reasonable caution in be-
ing carding, police officers found every- lieving that a violation of the law has
thing to be suspicious, including walking, been committed, is about to be com-
trotting, running, head turning, slowing mitted, or is in the process of being
down, getting into a high-end car, being committed by the person or persons
young, being Black and being in the back under suspicion. This suspicion may
seat of a car.188 be based on observations, training, and
experience or information received
53. Police are often called to reports from
from credible sources.
the public of a person engaging in suspi-
cious activity. That activity might appear 57. In my view, suspicious activities must
to be innocuous to the police officer. Is the be viewed within the context of objective
situation an investigation (to which the suspicion.
Regulation does not apply) or an inquiry
(to which the Regulation does apply)?
94 The Independent Street Checks Review

curred, it forms part of an investigation

Recommendation 5.13 that is exempt from the Regulation.

61. What about police intelligence that

“Suspicious activity” should be
is gathered proactively? There are a few
defined in the Regulation to
ways that police services might obtain
mean an activity where, under
such information.
all of the circumstances, there
are objective, credible grounds 62. For example, a police officer asks an
to request identifying informa- individual if there are known gang mem-
tion. bers in the area or if gang members in the
area wear certain colors. That request is
for information for intelligence gathering
purposes or related to general criminal
Recommendation 5.14
activity in the community. However, the
Regulation does not apply because there
Police officers should be was no request made for identifying in-
directed and trained that when formation.
there is a suspicious activity
and it is feasible to do so, a po- 63. If the officer asks the person to iden-
lice officer should first make tify themselves, then the Regulation ap-
inquiries of an individual to plies and the officer must be able to articu-
confirm or dispel the officer’s late the reasons why asking that person to
suspicion without requesting provide their own identifying informa-
identifying information. tion was necessary to gather intelligence
information or inquire into general crim-
Gathering Intelligence inal activity in the community.

58. In addition to collecting identifying 64. The person must first be informed of
information for inquiries into general the reason why the identifying informa-
criminal activity and suspicious activities, tion is being requested and then told that
the Regulation allows the gathering of they do not have to provide their identi-
identifying information for intelligence fying information. Again, there are safe-
purposes.190 guards in the Regulation to ensure that
identifying information is not dispropor-
59. The courts have recognized that the tionately requested in encounters of this
gathering of police intelligence is well nature.
within the ongoing police duty to investi-
gate criminal activity.191 65. Under the current Regulation, a re-
quest for identifying information for
60. When intelligence is gathered in or- intelligence gathering purposes may be
der to solve a crime that has already oc- specific or random.
 Chapter 5 • Application and Interpretation of the Regulation 95

66. An example of a specific request is solve crimes by identifying any and all
when a police officer stops a car for a people in an area.
traffic violation and discovers that the
driver has a lengthy criminal record and
is a known drug dealer. The officer then The courts have recognized that
requests that the passenger of the car the gathering of police intelli-
also provide identifying information. The gence is well within the ongoing
passenger is not suspected of an offence,
but information about those found in the
police duty to investigate crim-
company of a known criminal might pro- inal activity.
vide valuable police intelligence. There is,
therefore, a specific reason to target the
68. For example, imagine that a police
passenger. In my opinion, and as articu-
service determines that drug transactions
lated above, the Regulation should apply
are often occurring at a particular street
to the collection of identifying informa-
intersection. There have been many com-
tion from the passenger. However, due to
plaints from the local community. The
privacy concerns, it may not be advisable
police service would like to know who is
or appropriate for the officer to disclose
hanging out at that intersection because
to the passenger the reason for the request
that intelligence could help locate or
(e.g. the disclosure of information that
identify a suspect. As a result, the police
the other person has a criminal record).
service asks its officers to make random
Perhaps in such circumstances, police of-
inquiries of everyone found at that inter-
ficers should advise that the reason for the
section and obtain their identifying infor-
request cannot be disclosed and the of-
mation if possible. Since the police are
ficer’s record of the regulated interaction
seeking information regarding a specific
should include a reference to the privacy
type of offence at a specific location after
concerns at issue. That reason should not
being informed that this situation is oc-
be accessible to the person who is asked
curring, the sole reason for the requests
to provide the identifying information in
is not simply that people are present in
any FOI request related to the regulated
a high crime neighbourhood. While the
interaction.
reason for the requests is specific, the
67. On the other hand, when the intel- people that are stopped are selected ran-
ligence gathering is random and the per- domly. The sole focus of such a request is
son’s identity is the focus and intention of to gather names and create a database of
the request, rather than simply incidental people in this area.
to the police officer’s inquiry, it amounts
69. The Regulation tries to balance the de-
to the practice traditionally known as
sire to prevent discriminatory stops with
carding. The police service is establishing
a desire to keep communities safe by still
a database in order to deter, detect and
96 The Independent Street Checks Review

affording police the ability to gather the the Regulation’s approach to controlling
data necessary to deter and solve crimes. inquiries into suspicious activities or po-
The Regulation seeks to achieve this by tential offences, they view the catch-all
requiring the police to record information of gathering information for intelligence
about everyone approached and analyze purposes as being the worm in the apple
that data to determine whether the infor- of the Regulation.
mation is being requested appropriately.
73. Before deciding what, if any, recom-
70. The Regulation is an improvement mendations should be made with regard
over the prior situation where individuals to the police practice traditionally known
did not have to be told the reason for re- as carding, which is still permitted in some
questing identifying information or that respects by the Regulation, it is necessary
they did not have to provide identifying to examine whether random street checks
information. However, it still allows for actually work.
the random – albeit non-discriminatory –
collection of identifying information. Do Random Street Checks Actually
Work?
74. The Peel Regional Police Service re-
The Regulation tries to bal- ported that, after the number of street
ance the desire to prevent dis- checks dropped by 95% from pre-Regu-
criminatory stops with a desire lation in 2014 to post-Regulation (2016
and 2017), there were significant increas-
to keep communities safe by
es in the number of shootings and fire-
still affording police the ability arm related occurrences, as well as large
to gather the data necessary to decreases in the seizure of guns and other
deter and solve crimes. weapons and reductions in the number of
solved crimes. There have also been recent
reports of a spike in gun crime in Ottawa
71. Given the Regulation’s objective, it is and Toronto.
important to consider whether the prac- 75. Some people are now drawing a con-
tice of completely randomly collecting nection between the recent spike in gun
identifying information should be per- crime in some Ontario cities and the re-
mitted at all. During my consultations, duction in the number of street checks.
I heard from many stakeholders who are Others argue that the spike in gun crime
incensed that the Regulation does not results from many factors, including cut-
ban carding completely but regulates it ting police resources and reducing the
and implicitly approves of it as a proper number of police officers, removing police
and necessary police practice. officers from schools, opening supervised
72. While many stakeholders approve of injection sites, scrapping mandatory min-
 Chapter 5 • Application and Interpretation of the Regulation 97

imum sentences for gun crimes, grant- historically designated as priority neigh-
ing bail to dangerous criminals and/or a bourhoods by the United Way due to
fluctuation to be expected when statistics their disproportionately high incidences
span a number of years. of poverty and crime. These neighbour-
hoods include Rexdale, Jane and Finch,
76. Linking a recent spike in crime in and Lawrence Heights.195
some cities with a reduction in the num-
ber of street checks is a difficult conclu- 79. Gun violence statistics alone do not
sion to draw. Many other jurisdictions paint a complete picture of the post-Regu-
in Ontario did not report any increase in lation situation in Ontario.
crime after a reduction of street checks.
80. On November 21, 2018, Statistics
In fact, violent crime in Toronto declined
Canada reported its findings on the 2017
in the years leading up to 2014, despite
Canadian homicide rates. Notably, Janu-
the fact that the Toronto Police Service
ary 1, 2017, is the time when the Regula-
voluntarily curtailed the number of street
tion fully came into effect. In 2017, On-
checks during that time.192 Toronto also
tario reported the second largest decline
experienced a 65% increase in gun seiz-
in the total number of homicides among
ures from 2017 to 2018, despite the fact
the provinces in Canada.196 More spe-
that Toronto reported few regulated
cifically, homicides dropped from 206 in
interactions in 2017 and 2018.193
2016 to 196 in 2017, constituting a rate
77. The recent increase in gun violence decline of 1.47 to 1.38 per 100,000.197
in Toronto appears to relate more to the
81. Statistics Canada reported that, in
number of fatalities than the number of
2017, there was a country-wide increase
incidents. The Toronto Star reports that
in homicides – largely due to guns and
shooting incidents in Toronto increased
gangs – with the homicide rate hitting
10% for the period from January 1 to July
its highest rate since the year 2009. The
23, 2018, compared to January 1 to July
provinces that particularly drove up the
23, 2016, while shooting deaths in 2018
homicide statistics were British Colum-
were up 16% for the same period. There
bia and Québec. The provinces with the
is an anomaly between 2016 and 2017
greatest reduction in homicides in 2017
in that the statistics show that there was
were Saskatchewan and Ontario.198 The
a significant decrease in gun deaths be-
year that the Regulation came into effect,
tween those years. This was followed by
the Ontario homicide rate actually went
a 70% increase in shooting fatalities from
down.
2017 to 2018.194
82. Police officers remain able to stop and
78. It was also reported that during the
question people reasonably suspected of
same 2016 - 2018 period, the number of
being implicated in an offence without
shootings declined by a combined 40% in
triggering the operation of the Regula-
some neighbourhoods which have been
98 The Independent Street Checks Review

tion. That includes not triggering any re- not necessarily mean that there are fewer
quirement to advise people that they do street checks, but rather that fewer checks
not have to provide their identifying in- today qualify as street checks. That would
formation, unless the police service has a not affect the crime rate.
policy in place that includes that require-
86. Some contend that the recent rise in
ment, as some do.
crime is due to the fact that police are re-
83. Police officers remain entitled to ap- quired to tell people that they do not have
proach people and question them with- to provide their identifying information
out asking for identifying information in regulated interactions. However, that
without triggering the Regulation. Po- occurs only when the police officer has
lice officers remain able to search people less than a reasonable suspicion that the
for weapons when the officer reasonably person is implicated in an offence or the
suspects that the person is carrying a officer is gathering intelligence informa-
weapon. That reasonable suspicion can tion. In neither situation was a person
arise during the course of a regulated or ever required to provide identifying in-
non-regulated interaction. The Regula- formation.
tion does not prevent the lawful seizure
87. Finally, the Regulation does not take
of guns or weapons.
away any important police method of
gathering information, so that potential
concern could not explain any increase
Police officers remain entitled in crime. Police officers never had the
to approach people and question ability to require someone to provide
them without asking for iden- their identifying information in circum-
tifying information without stances to which the Regulation would
triggering the Regulation. have applied. People often provided their
identifying information with the mis-
taken belief that they were required to do
84. It could still be argued that the spike so, and there was little incentive for the
in crime is due to the fact that there are police officer to advise them otherwise.
now fewer street checks than before the The Regulation simply gives effect to the
Regulation. existing law that people do not have to
provide their identification when there
85. As has already been noted, the ap- are no reasonable grounds to believe the
parent large reduction in the number of person has committed an offence.
street checks over the past few years could
result from many factors. The different 88. I also noted during the Review that
definitions of street checks mean that many police officers are conducting few-
fewer stops today qualify as a street check er street checks due to concerns regard-
than prior to the Regulation. That does ing the interpretation of the Regulation.
 Chapter 5 • Application and Interpretation of the Regulation 99

Some officers are concerned that if they the Regulation generally, the reasons for
do engage with the public, they will be- street checks and the fact that people are
come the subject of complaints from required to provide identifying informa-
the public. Others were confused by the tion in some situations.
wording of the Regulation and are reluc-
92. The Regulation did not eliminate
tant to approach members of the public
street checks. Without any restriction,
in the absence of lawful grounds for an
police officers can stop, question and ask
investigative detention or arrest.
people to identify themselves – if the of-
89. Notably, there have been no for- ficer reasonably suspects criminal activity.
mal complaints to the Office of the In- Without any restriction, police officers
dependent Police Review Director about can stop and question people, without
police officers related to regulated inter- asking them to identify themselves – if
actions and, thus, no officers have been the officer has less than reasonable sus-
disciplined through this process. picion of criminal activity. In either situ-
ation, if the police officer reasonably sus-
90. The argument for random carding pects the person has a gun, a search can
then becomes circular. Some police street be conducted.
checks were proper. The improper practice
of random carding led to the Regulation. 93. The only thing that has changed is
The Regulation led many police officers that, if a police officer requests a person’s
to not conduct any street checks, wheth- identity with less than reasonable suspi-
er proper or not. The lack of any street cion of criminal activity or to gather in-
checks at all might have encouraged some telligence, there has to be a good, justi-
types of crime to increase. This increase in fiable or “articulable” reason for asking
some crimes has led some people to argue them to provide their identity. That is not
that we should return to random carding.  an onerous requirement.
This assumes that it was the reduction of
94. There is nothing in the Regulation
random street checks that caused the in-
that prevents police officers from con-
crease in some crimes, as opposed to the
tinuing to perform their duties in a pro-
reduction of all street checks.
active manner. Perhaps the focus should
91. The solution to those issues is not for shift away from trying to link an increase
police officers to fail to conduct street in crime to a reduction in the number
checks when it is prudent and appropriate of street checks. Instead an assessment
to do so. The solutions include: providing should be undertaken of the impact of the
training to police officers to better under- Regulation within police services. The
stand the Regulation; supporting police approach within police services should
officers who conduct proper street checks not be one of resistance, but rather one
when there is a subsequent public com- seeking solutions that fall in line with
plaint; and educating the public about the authorities provided by law. A new
100 The Independent Street Checks Review

approach to what constitutes “proactive formation, it is difficult to assess whether

policing” is necessary. or not the initial collection of identifying
information from the third person was,
95. Overall, it is difficult to see anything indeed, random.
contained in the wording of the Regu-
lation or in its proper application that
would cause a spike in gun crime or vio- A new approach to what con-
lent crime. stitutes “proactive policing” is
96. Another argument is that performing necessary.
random street checks or carding is valu-
able in both solving crime as well as in- 98. What is clear from the consultations
creasing conviction rates. Consider this and research conducted during this re-
example: the police receive a report that view is that random carding – or the
three people have committed a robbery. random stopping and collecting of iden-
Two of them are arrested fleeing the tifying information from members of the
scene and the third escapes. Police run public who are not suspected of any crime
the names of the two arrested individuals or of being involved in any criminal ac-
in their records management system and tivity for the purpose of creating a data-
discover that, on two previous occasions, base of information – disproportionately
these two individuals were in the com- affects and negatively impacts innocent
pany of a third individual. This informa- law-abiding Indigenous, Black and other
tion leads the police to arrest the third racialized people. The societal and social
individual and solve the crime. Over and costs far outweigh its benefits.
over again, I heard from various police
stakeholders that this scenario outlines 99. Viewed through the lens of Indigen-
one of the values of random carding. ous, Black and other racialized com-
munities, the practice of random street
97. The difficulty with this scenario, how- checks or carding evokes a very different
ever, is we really do not know the context response. Historically, Indigenous, Black
which led up to the police receiving the and other racialized communities have
personal information of any of these indi- experienced systemic discrimination and
viduals. We do not know the nature of the inequality throughout North America.
previous police contact or the articulable Profiling and surveillance of these com-
reasons for collecting the information in munities goes back centuries, and this his-
the first place. The third person may have torical context is critical in understanding
been suspected of some other crime, the why the randomness of carding is viewed
police may have received information that by these communities as tantamount to
they were involved in gang related activ- racial profiling.
ities or they may have had previous crim-
inal records. Without the contextual in- 100. The question then becomes, what
 Chapter 5 • Application and Interpretation of the Regulation 101

is racial profiling? In the context of poli- pensity of an entire racial group.200

cing, the Supreme Court of Canada has
102. The Supreme Court of Canada
adopted the following definition of racial
has noted that “profile characteristics are
profiling:
not a substitute for objective facts that
Racial profiling is any action taken by raise a reasonable suspicion of criminal
one or more people in authority with activity. Profile characteristics must be
respect to a person or group of per- approached with caution precisely be-
sons,  for reasons of safety, security or cause they risk undermining a careful in-
public order, that is based on actual or dividualized assessment of the totality of
presumed membership in a group de- the circumstances”.201
fined by race, colour, ethnic or nation-
103. The long-term effect of randomly
al origin or religion, without factual
carding individuals in these communities,
grounds or reasonable suspicion, that
most of whom are law abiding citizens, is
results in the person or group being
the alienation of entire communities from
exposed to differential treatment or
police. Throughout my consultations, I
scrutiny.
was told by Indigenous, Black, and other
Racial profiling includes any action racialized people that they all want to feel
by a person in a situation of authority safe within their communities and that
who applies a measure in a dispropor- they rely on the police to keep their com-
tionate way to certain segments of the munities safe. However, when they or
population on the basis, in particular, their family members are randomly card-
of their racial, ethnic, national or re- ed, they lose trust and confidence in the
ligious background, whether actual or police and are reluctant to cooperate with
presumed.199 the police, which then adversely affects
community safety.
101. The Court of Appeal for Ontario
adopted the following definition of racial 104. As detailed more thoroughly in
profiling: Chapter 2, an aggressive policy of random
street checks has been shown to result in
Racial profiling is criminal profiling a loss of public trust and cooperation with
based on race. Racial or colour profil- the police, and may even promote crime.
ing refers to that phenomenon where-
by certain criminal activity is attribut-
ed to an identified group in society on 105. A report prepared for the Toron-
the basis of race or colour resulting in to Police Services Board noted that, with
the targeting of individual members regard to street stops by the police: “it is
of that group. In this context, race is easy to exaggerate the usefulness of these
illegitimately used as a proxy for the stops, and hard to find data that supports
criminality or general criminal pro- the usefulness of continuing to carry
102 The Independent Street Checks Review

them out”.202 The ultimate conclusion Kingdom have shown that the net effect
reached by the authors of that report was of the practice of random police stops on
that: “the evidence that it is useful to stop, public opinion of the police is negative.205
question, identify and/or search people A policy of discriminatory use of stop and
and to record and store this information search powers has been linked to riots in
simply because the police and citizens the United Kingdom in 1981 and 2011,
‘are there’ appears to us to be substantial- in Paris in 2005 and in Copenhagen in
ly outweighed by convincing evidence of 2008 and 2009.206
the harm of such practices both to the
109. While it has been difficult to
person subject to them and to the long
gauge the total effectiveness of the stop
term and overall relationship of the police
and search policy in the United Kingdom
to the community”.203
given the lack of data, reports suggest that
the information that does exist indicates
An aggressive policy of random that stop and search plays only a minor
role in detecting or deterring offenders or
street checks has been shown to
reducing crime.207
result in a loss of public trust
and cooperation with the police, 110. The research shows that, when
extraordinary powers were used in the
and may even promote crime.
United Kingdom to search people for
knives, one of the jurisdictions that was
the second lowest user of these powers
106. This finding is supported by many
had the highest drop in the rate of knife
police services which report that purely
crime. At the same time, another juris-
random street checks produced low qual-
diction that had the second highest use
ity intelligence. However, further research
of the search powers experienced a large
into the possibility of street checks having
increase in knife crime.208 According to
a deterrent effect on the carrying of illegal
these studies, there seemed to be little
firearms may be warranted.
correlation between the use of the search
107. The Canadian experience is not powers and the crime rate.
unique. In the United Kingdom, the find-
111. Similarly, when the police practice
ings are similar. It has been noted that
of stop, question and frisk was declared
there is a “paucity of evidence on the
to be unconstitutional in New York, the
effectiveness of stop and search” which
homicide rate continued to drop despite
directly “contrasts a growing body of evi-
the drastic reduction in the number of
dence that identifies significant costs in
people stopped. Despite the 55-fold drop
terms of reduced public trust and confi-
in the number of stops and searches con-
dence”.204
ducted – from 685,724 in 2011 to 12,404
108. The results of studies in the United in 2016 – the rate of major felony crimes
 Chapter 5 • Application and Interpretation of the Regulation 103

in New York hit its lowest level in decades lowed by a slightly lower than expected
in 2016.209 rate of some crime, such as drug offences.
Searches conducted under specific police
112. The reforms instituted in New powers also had slightly lower than ex-
York, such as requiring police officers pected rates of crime for some offences.
to have articulable cause for a stop and The associations were weak, with the
search, and to issue a receipt with contact strongest associations being for drug of-
information to make a complaint after a fences and the weakest for violent crime.212
police stop, are reflected in the Regula-
tion. Imposing such requirements and 115. The low correlation indicated that
dramatically reducing the number of po- there was only limited evidence that stop
lice stops does not necessarily correlate to and search had a meaningful deterrent ef-
an increase in violent crime. The fact that fect. The effect of a stop and identify (or
New York imposed these requirements request for identification) – as opposed
and crime went down consistently over to stop and search – could be expected to
many years while, in some jurisdictions have even less of a correlation.213
in Ontario, the violent crime rate has re-
116. The authors of the study conclud-
cently increased, suggests that there are
ed that a large increase in the use of stop
other factors than the Regulation at play.
and search would deliver only a modest
113. In the United Kingdom, Her reduction in crime, which would be offset
Majesty’s Inspectorate of Constabulary by the associated financial and opportun-
released a report in 2013 which found ity costs and loss of public trust.214
that when the Metropolitan Police Ser-
117. The report also concluded that a
vice reduced its use of extraordinary stop
stop and search policy was more effective
powers by almost 90%, there was no as-
when targeted to specific crime types at a
sociated impact on violent crime rates.210
local level rather than a general practice at
This makes it very difficult to argue
a borough level. That was particularly the
that an increase in the homicide rate or
case if the stop and search powers were
in the number of knives being carried
exercised as part of a broader strategy to
as weapons is due to a reduction in the
solve the underlying causes of a particular
number of stops and searches alone.
crime problem or to target active prolific
114. With regard to deterrence, the offenders responsible for a disproportion-
College of Policing in the United King- ate number of priority offences.215
dom analyzed the data for the 10-year
118. While the exercise of stop and
period ending in 2014 to try to deter-
search powers may provide useful re-
mine if more stop and search meant less
sults in some places at some times, it is
crime.211 Its conclusion was that higher
not known whether the program is more
overall rates of stops and searches con-
or less effective than other methods of
ducted under any search power were fol-
104 The Independent Street Checks Review

policing.216 Some evidence indicates that bourhoods need the most assistance as
the strongest crime prevention gains did well as early intervention strategies for at
not result from random street checks but risk youth.218
were generated by strategies to modify
121. In July 2018, it was reported that
the local conditions, such as cleaning up
90% of the gun violence in Toronto up to
and securing vacant lots, demolishing
that point in time in the year was gang
abandoned buildings, improving street
related.219 There is a strong link between a
lighting, adding video surveillance and
sense of social alienation due to discrimin-
performing code inspections of disorder-
ation and young people joining gangs.220
ly venues.217
There is also evidence that a substantial
119. The use of technology such as number of these young people who are
public cameras, facial recognition soft- experiencing or perpetrating youth vio-
ware or even terahertz laser scanner to lence are being regularly subjected to
detect weapons can help to limit the police stops.221 In light of this research, it
possibility of racial profiling, depending does not appear that carding is the main
on how that technology is used. It should solution to the problem of youth or gang
be noted that urban centres within the violence or gun crime. If anything, it ap-
United Kingdom are blanketed by sur- pears to exacerbate the problem.
veillance cameras in all public areas. In
122. Some police services have noted
most cities, police have unfettered access
that the recent move toward multi-sec-
to these cameras.
toral risk intervention models provides
120. In 2005, increased gun violence better results for crime prevention than
was a major issue of concern for citizens street checks. In those models, profes-
as well as law enforcement and govern- sionals from health and social service
ment officials in Ontario. This period was agencies and organizations along with
dubbed the “year of the gun” by various police services create situation tables.222
newspapers. As a result, the government The situation tables, which include rep-
of Ontario retained former Ontario Chief resentatives from education, police and
Justice Roy McMurtry and former MPP justice services, primary health care,
Alvin Curling to study the issue and re- community health and hospital services,
port back with recommendations. The community mental health and addictions,
end result was an extensive five-volume child protection services, housing and
report. Their conclusion was that gun homelessness support services, sexual as-
violence should be reduced by addressing sault and victim support services, identify
the root causes of youth violence through people who are at “acutely elevated risk”
methods including repairing community as well as which agency could best inter-
relations, empowering youth and neigh- vene to help these people.223 Information
bourhoods, and identifying which neigh- is shared between the interveners, usually
 Chapter 5 • Application and Interpretation of the Regulation 105

with the person’s consent, to help people 126. A widespread program of ran-
meet their immediate needs and reduce dom street checks involves considerable
their level of risk. time and effort for a police service, with
little to no verifiable results on the level
123. For the police partners, in addi-
of crime or even arrests. Some police ser-
tion to assisting those with mental health
vices reported that there are other ways
concerns, there could be a focus on the
to gather data or use data that they al-
most pressing of criminal activities and
ready have more effectively, rather than
victimization (i.e. gang and gun violence).
stopping people randomly and asking for
The police, as an equal partner with other
identifying information.
agencies, can identify those most at risk of
gang membership for intervention. These Should Random Street Checks or
programs require resources to allow agen-
“Carding” Ever be Allowed?
cies to develop the processes to share in-
formation as well as to develop trust and 127. The lack of empirical evidence
rely on each other. Some police services in that carding is a useful police practice,
the Province of Ontario are already using particularly after factoring in the social
this model. cost of the practice, leads to an inevitable
question. Should police officers ever be
124. This approach finds support in allowed to randomly stop people on the
other jurisdictions. Between the years street and request them to provide iden-
2007 and 2017 – after adopting a pub- tifying information purely for intelligence
lic health approach to the problem rather gathering purposes?
than increasing the overall rate of stops
and searches – the rate of violent crime in 128. The lack of evidence of the effect-
Scotland was cut almost in half and the iveness of the police practice traditional-
rate of crimes involving weapons dropped ly known as carding has led many police
by two-thirds.224 services to discontinue the practice.

125. So is it better for police services to 129. Police services in Ontario re-
employ hundreds of officers to question ported conducting fewer regulated inter-
thousands of people who are not reason- actions in 2017. Those interactions were
ably suspected of committing any offence conducted mainly for the purpose of
or to employ those same officers to focus inquiring into suspicious activities or
on those individuals who actually are rea- general criminal activity. In 2017, there
sonably suspected of committing an of- were few to no regulated interactions
fence? The data indicates that the better conducted for the purpose of gathering
use of police resources is a more focused information for intelligence purposes, de-
approach. Shifting resources to crime spite the ability to do so.
prevention will be of assistance. 130. Removing the ability to conduct
106 The Independent Street Checks Review

such inquiries would not appear to sig- pose, a computerized record is made of
nificantly impair the ability of police ser- the reason for the interaction as well as all
vices to perform their functions. “entity information” collected and all rel-
evant information and observations from
131. The Vancouver Police Depart- the street check.
ment proposed a policy on street checks
in January, 2016.225 The policy is still be- 134. In the preamble to its policy gov-
ing developed and has yet to be imple- erning the Regulation, the Toronto Police
mented, although it is expected to be im- Services Board noted that the goals and
plemented in late 2018 or early 2019.226 objectives of the policy include ensuring
that police officers not gather identifying
information in a regulated interaction
The lack of evidence of the ef- solely for the purpose of building a body
fectiveness of the police practice of general information or prolonging an
traditionally known as carding interaction in the hope of acquiring rea-
sonable suspicion to detain. “Building a
has led many police services to
body of general information” is the crux
discontinue the practice. of the practice of random carding.

135. Police services may be concerned

132. That policy noted that “[s]treet that an inability to randomly request
[c]hecks are not the indiscriminate ob- identifying information for intelligence
taining of personal information for the purposes will interfere with their abil-
purpose of creating a database on mem- ity to address emergency situations and
bers of the public”.227 Instead, street threats to public safety. Setting aside what
checks are allowed only for non-arbitrary I have said above about the limited value
and non-discriminatory articulable rea- of random street checks data, there is no
sons that serve a valid investigative and/ real cause for such concerns.
or safety purpose and which include: in-
136. Street checks in response to
vestigating a suspected offence or series of
emergency situations and threats to pub-
offences; preventing an offence; ensuring
lic safety are, by their very nature, not ran-
the safety of members of the public; and
dom: they are not requests for identifying
ensuring the individual who is the subject
information that do not have a tangible
of the contact is not at risk of harm.228
aim or purpose apart from collecting in-
133. In the Vancouver policy, when a formation for a database. They are target-
police officer determines the suspicion is ed requests where the officer minimally
unfounded or there is no investigative or suspects possible offences or is making
safety concern, no computerized record inquiries to detect specified offences or
is kept of the interaction. If there is an that relate to persons who may have use-
investigative value or public safety pur- ful information about offences.
 Chapter 5 • Application and Interpretation of the Regulation 107

137. When addressing specific issues, • Police hear that a dangerous repeat of-
the police have the ability to request fender has been seen multiple times in
identifying information either: as part of a particular neighbourhood. Police may
an investigation into specific criminal ac- visit the neighbourhood to speak to in-
tivity (which is exempt from the Regula- dividuals who might have information
tion); or as part of a regulated interaction about the person’s activities, where-
by inquiring into suspicious activities or abouts and associates – for example, the
potential offences or for specific intelli- owner of a store where the offender has
gence gathering purposes. For example, been seen – without asking for these
consider the following scenarios: individuals’ identifying information. In
this situation, the Regulation does not
• There is a large spike in gun crime in apply. Police can also approach people
a particular neighbourhood. There have who were observed to associate with
been several shootings and people are the repeat offender in order to iden-
afraid to go outside at night. Police have tify those associates. Such a request for
reason to suspect an active gang dispute. identifying information is targeted and
Police are able to request identifying in- would constitute specific intelligence
formation pursuant to the Regulation gathering. In this case, the Regulation
from individuals they observe associat- applies to the officers’ collections of
ing with known gang members as part identifying information. The objective
of their targeted intelligence gathering. and credible reasons for requesting the
They can do so without randomly stop- identifying information will be simple
ping everyone on the street and asking to explain.
for their identification. Police can also
more heavily monitor the neighbour- • Police receive a 911 report that indi-
hood and conduct observation checks viduals are showing off handguns at a
as well as have conversations with indi- particular restaurant. Police are able to
viduals where they do not request iden- attend and, based on the information
tifying information. This practice allows given in the 911 report, conduct an
them to engage in more frequent in- investigation that involves requesting
quiries into offences, potential offences identifying information from individ-
or suspicious activities they encounter, uals who are present. This is an inves-
particularly with those who may be as- tigation into a specific offence that the
sociated with a gang. The Regulation officer reasonably suspects has been or
applies to the officers collecting iden- will be committed, and the Regulation
tifying information from individuals does not apply.
unless they are investigating a specific 138. It is hard for me to imagine a
shooting or other offence and have rea- scenario where the police’s inability to
son to engage the person in the context randomly stop people to conduct street
of their investigation. checks for general intelligence gathering
108 The Independent Street Checks Review

purposes would interfere with their abil- 140. To assist in clarifying the oper-
ity to address emergency situations and ation of the Regulation and my recom-
threats to public safety. mended changes, please see the info-
graphic at Appendix D.

It is recommended that the

practice of randomly stopping
individuals to gather their
identifying information for the
creation of a database for intel-
ligence purposes be discontinued.

139. As outlined in detail earlier, there

is little to no evidence that a random, un-
focused collection of identifying informa-
tion has benefits that outweigh the social
cost of the practice. Given the social cost
involved with a practice that has not de-
finitively been shown to widely reduce or
solve crime, it is recommended that the
practice of randomly stopping individuals
to gather their identifying information
for the creation of a database for intelli-
gence purposes be discontinued in those
remaining jurisdictions that still employ
the practice.

Recommendation 5.15

No police service should ran-

domly stop people in order to
collect and record identifying
information and create a data-
base for general intelligence
purposes.
 Chapter 6
Prohibition on the Collection of
Certain Information
 Chapter 6 • Prohibition on the Collection of Certain Information 111

Introduction only descriptors of an individual are their

1. When are police officers not author- race, sex and age: a more specific descrip-
ized to collect identifying information? tion is required in order to justify a re-
This question, which is addressed in sec- quest for identifying information.
tion 5 of Part II of the Regulation, is the
focus of this chapter. Collection of Identifying
Information based on Prohibited
2. This chapter will examine the pro- Grounds
hibition on the collection of information
5. While the Regulation currently pro-
based on certain prohibited grounds as
hibits the collection of identifying infor-
well as the prohibition on the arbitrary
mation based on an individual’s race, it
collection of identifying information, and
does not expressly prohibit the collection
provide a range of associated recommen-
of identifying information based on any
dations.
of the other prohibited grounds set out
3. The Regulation limits the identify- under the Ontario Human Rights Code or
ing information that can be collected. A on the basis of a person’s socioeconomic
police officer shall not attempt to collect status.
identifying information if “any part” of
6. Similar to an individual’s race, a pro-
the reason for the attempted collection is
hibited ground on its own should also not
because the officer perceives the individ-
be the reason or part of the reason for
ual to be part of a “racialized group” or
requesting identifying information. The
if the attempted collection is done in an
only exception to this is when the police
“arbitrary way”.229
are looking for a particular individual
4. The aim of this part of the Regulation and one of these factors is material to the
is to ensure that an individual’s race is not description or identity of the individual
any part of the reason for requesting per- police are seeking. For example, a police
sonal identifying information. When po- officer cannot stop an individual and ask
lice are looking for a particular individual, for identifying information simply be-
race can certainly be one of the identify- cause they are a person with a disability.
ing factors but it should not be the sole or However, if police are seeking a particu-
primary reason for requesting identifying lar individual who they know is a person
information. When police are not look- with a disability, that information should
ing for a specific individual (e.g. where form part of the description of the indi-
they are conducting general intelligence vidual and, thus, would be a reasonable
gathering), race should not be part of the part of why police stop someone fitting
reason without an objectively credible ex- that description. To illustrate, imagine
planation. The Regulation expressly pro- an eye witness indicates that a male with
hibits requests for information where the one arm robbed a store. She did not see
his face or hair because he was wearing a
112 The Independent Street Checks Review

mask. A short time later, a male with one additional information could include: the
arm is spotted in the area of the robbery. appearance of the individual, including
Police should be able to approach this in- information about the individual’s cloth-
dividual even though the description in- ing, height, weight, eye colour, hair colour
cludes two prohibited grounds (disability or hair style; the location where the indi-
and gender) if there are additional pieces vidual might be found; the type of vehicle
of information – in this case, the location the individual might be found in; the as-
of the individual. sociates the individual might be found
with; or the individual’s behaviour.231
7. Some police services already include
this type of restriction in their policies 11. The “additional information” specif-
and procedures. ically cannot consist only of the sex of
the individual, the approximate age of
8. The Regulation is very specific about the individual or both.232 For example,
when an officer can use race as part of the officer could have a description of a
the reason for an attempted collection of “20-year-old white man”, but the officer
identifying information. Under the Regu- cannot ask all men who appear to be 20
lation, an officer can attempt to collect in- years old and white to provide identifying
formation from individuals on the basis information. However, if the description
that they appear to be part of a racialized was a 20-year-old white man and he was
group if: the officer is seeking a particular described as being tall, or heavy, or in a
individual; that individual was described red jacket, or had blue eyes or black hair,
as being in that racialized group (or ap- or was near a certain spot, or was in a cer-
pears to be so in a photograph or other tain type of car, or was staggering, then
visual representation); and the officer has a person fitting that description could be
additional information about the individ- asked to provide identifying information.
ual other than their racialized group.230
12. Some community members are con-
9. Racial identity is a necessary com- cerned that this definition will allow
ponent of a subject description. Some po- questioning based only on the description
lice officers note that a person’s colour is a “young Black man in a hoodie”, because
more reliable component of a description such a description would be sufficient
than other factors, such as their clothing, to comply with the Regulation. Even a
which can be easily shed or changed after description of a young Black man with
an event. black hair would qualify.
10. The Regulation sets out examples of 13. The Regulation must try to ensure
what “additional information” – in addi- that general descriptions involving race
tion to the perceived inclusion of the per- are not used as a justification to stop and
son in a racialized group – could justify question a large number of people.
a request for identifying information. The
 Chapter 6 • Prohibition on the Collection of Certain Information 113

14. If there was a report of a robbery by a

young Black man in a hoodie, then ques-
attempt to collect identifying
tioning a person who fit that description
information from an individual
would make sense; however, it would be
if:
preferable to have further information
describing, for example, the likely location (a) any part of the reason
of the person or the colour of the hoodie. for the attempted collection
In any event, if there had been a robbery is a prohibited ground
then the questioning would be part of an of discrimination under
investigation and not an inquiry, and the section 1 of the Ontario
Regulation would not apply. Human Rights Code, R.S.O.
1990, c. H.19, or is due to the
15. The Regulation attempts to pin down individual’s socioeconomic
when a person’s race may form part of the status, or
reason that the person is asked to provide
(b) the attempted collection
identifying information. The concern is to
is done in an arbitrary way.
prevent people from being stopped and
questioned for improper reasons or based (2) A police officer may consider
on a vague description. The solution is if an individual is part of a group
to require a credible, reasonably specif- protected by a prohibited
ic description relating to the individual ground of discrimination
and their circumstances before requesting under section 1 of the Ontario
identifying information. Human Rights Code or the
individual’s socioeconomic
16. The Regulation currently provides
status (“protected group”) if:
several examples of the additional infor-
mation that may be considered. To make (a) the officer is seeking a
the Regulation shorter and simpler, it particular individual;
could be rephrased to set out the result (b) being within a protected
that is sought, which is to require greater group(s) forms part of a
specificity in individual descriptions. credible, reasonably specific
description relating to the
Recommendation 6.1 individual or is evident from
a visual representation of
the individual; and
Remove subsections 5(1), (2)
(c) the description consists
and (3) of the Regulation, and
of more than the individual’s
replace with:
membership in a protected
5 (1) A police officer shall not group(s).
114 The Independent Street Checks Review

Arbitrary Collection of Identifying 2) The reason does not include the

Information is Prohibited fact that the individual declined to
answer questions that they were not
17. The Regulation sets out the param-
legally required to answer or that they
eters for collecting and storing an indi-
discontinued or attempted to discon-
vidual’s identifying information. As a
tinue the interaction with the officer
society, we place a high social value and
when the individual was legally en-
privacy interest on an individual’s person-
titled to discontinue the interaction;
al information as well as the state’s power
and
and responsibility to protect such infor-
mation from both arbitrary collection and 3) The reason was not simply that the
use. As such, no attempted collection of individual was found in a high crime
identifying information can be done in an location.235
arbitrary way.233 An attempted collection
of identifying information is deemed by 19. A request for information cannot be
the Regulation to be done in an arbitrary based solely on the fact that the person
way unless the police officer can articulate was found in a high crime location, al-
a proper reason for collecting the identi- though being in a high crime location
fying information.234 can form part of the reason. As some po-
lice services have noted, many residents
of high crime neighbourhoods request
The Regulation must try to increased police involvement. Asking for
ensure that general descriptions information from individuals in those
neighbourhoods is an operational neces-
involving race are not used as
sity, but it cannot be done in an arbitrary
a justification to stop and ques- way.
tion a large number of people.
The Circumstances for the Request
20. While an inquiry under the Regula-
18. Specifically, the proper reason must
tion does not require a reasonable suspi-
include all of the following information:
cion that an offence has been or will be
1) There are details about the individ- committed, there must be a reason for
ual that cause the officer to reasonably requesting identifying information that
suspect that identifying the individual is not arbitrary and that reason must in-
may assist in inquiring into offences clude details about the individual that
that have been or might be commit- cause the officer to reasonably suspect that
ted, inquiring into suspicious activ- identifying the individual may contribute
ities to detect offences or gathering to or assist in an inquiry or the gathering
information for intelligence purposes. of information.236
 Chapter 6 • Prohibition on the Collection of Certain Information 115

21. The Regulation does not state that has occurred or might occur, but there are
the reason can include details about the objective and credible reasons to suspect
circumstances that cause the officer to rea- that identifying a person may assist to
sonably suspect that identifying the indi- determine if an offence has occurred or
vidual may contribute to or assist in an might occur, then the Regulation applies.
inquiry, although the details about the
23. Similarly, if the interaction between
individual could be construed to include
the police and a member of the public is
the circumstances in which the individual
purely to gather information for intelli-
was found.
gence purposes, and there is a request by
the police for the identity of the person,
Recommendation 6.2 then such an inquiry may be covered by
the Regulation.
The wording of clause 5(4)(1)
24. In other words, where there is a possi-
should be changed to “details
bility that a crime has occurred or might
about the individual and/or the
occur, police officers can ask people ques-
circumstances” that cause the
tions, without detaining them, in order to
officer to reasonably suspect
confirm or dispel their suspicions.
that identifying the individual
may contribute to or assist in 25. If the interaction between the police
an inquiry. and the member of the public extends to
the point where the police ask the per-
son to provide their identifying infor-
The Need to Obtain Identifying mation, then the Regulation applies, and
Information the officer must be able to articulate the
22. One of the primary purposes of the reasons why they consider the person to
Regulation is to outline the appropriate have information that is needed under
circumstances in which police officers the circumstances. The officer should be
should obtain identifying information able to properly explain what it was about
from members of the public. As indicat- the individual and the circumstances that
ed, regular interactions and communi- seemed suspicious or what led to the
cation between the police and members belief that there was a possibility that a
of the public are to be encouraged and, crime had or might occur, and why the
in most cases, do not require the police person who was asked to provide identi-
to seek names or other identifying infor- fying information might be able to assist
mation. Below are some of the circum- in that regard.
stances that may trigger the application 26. I will again use the scenarios from the
of the Regulation. For example, if there last chapter.
is no reasonable suspicion that an offence
Scenario One: A police officer sees a
116 The Independent Street Checks Review

man in a deserted alley in the middle a reason for the request.

of the night.
29. In the second scenario, there is no
Scenario Two: A police officer sees a reasonable suspicion that an offence has
man in a deserted alley in the middle occurred, but it is a possibility. There is
of the night carrying a crowbar. somewhat more than mere suspicion that
something odd is occurring that might
Scenario Three: A police officer sees a relate to an offence. There are objective
man in a deserted alley in the middle and credible reasons to make an inquiry.
of the night carrying a crowbar. Be-
hind the man is a car with a broken 30. No part of the objective and credible
window and glass on the ground. reasons can relate to the person’s racial
background or should relate to other pro-
Scenario Four: A police officer sees a hibited grounds of discrimination unless
man in a deserted alley in the middle they form part of a description, which is
of the night breaking a car window absent based on the facts as I have laid
with a crowbar. them out. As long as the totality of the
27. As already noted, the Regulation does circumstances, apart from the prohibited
not apply to the third and fourth scenar- grounds of discrimination, objectively
ios. and credibly warrant inquiry, then ques-
tions can be asked. The police officer can
ask the person why he is carrying a crow-
Interactions and communi- bar down an alley at night.
cation between the police and 31. When the officer asks the person why
members of the public are to be he is carrying a crowbar down an alley at
encouraged and, in most cases, night, the Regulation does not apply be-
do not require the police to seek cause no identifying information has been
requested. If the man indicates that he is
names or other identifying in-
bringing the crowbar to his house and the
formation. officer asks the person to identify himself
or provide his address, then the Regula-
28. In the first scenario, the officer gener- tion applies. The request as to where the
ally would not a have reason to question person lives may be justified because the
the man in the absence of additional in- person would be likelier to be carrying
formation (e.g. a recent rash of break-ins the crowbar to his home if the home was
in the area). If the officer questions the located nearby rather than across town.
man for intelligence gathering purposes 32. As I recommended above, the officer
and requests identifying information, the should be required to articulate why re-
Regulation applies and, under the Regu- questing identifying information is ne-
lation, the officer would need to articulate
 Chapter 6 • Prohibition on the Collection of Certain Information 117

cessary to the inquiry. In other words, if left unattended. That possibility does not
the officer’s suspicion was alleviated by need to be reasonable. The officer could
the individual’s responses without asking ask people in the area to identify them-
for identifying information, then no re- selves. It is not reasonable to expect that
quest for identifying information should the bike will be stolen but it is reasonable
be made. to suspect that identifying the people will
assist with the inquiry in the event that
33. In none of the above scenarios can the bike was or might be stolen. The de-
any part of the reason for the request for tails about an individual, including that
identifying information: be due to the they were in the same parking lot as the
fact that the individual is perceived to be bike, could be used to justify a request for
part of a particular racialized group; relate identifying information.
to other prohibited grounds of discrimin-
ation; or be due to the individual’s soci- 36. The requirement for articulable cause
oeconomic status because no description as set out in the Regulation relates to
was given and the officer was not looking the police officer being able to articulate
for a particular individual. The request the need to have identifying information
cannot be made in an arbitrary way. rather than requiring articulable reasons
for making the initial inquiry itself. As is
34. All requests for identifying infor- required later in the Regulation, the offi-
mation may assist police with inquiries. cer must tell the person the reason for the
This is because once the information is request for identifying information.237
recorded, it can be accessed in the event
that it is subsequently determined that 37. I make this distinction because the
an offence actually had been or was sub- Regulation currently allows police officers
sequently committed, even though this to commence inquiries for improper rea-
was unknown to the officer at the time sons such as the individual’s race, as long
the request was made. As per my previ- as the inquiry does not continue to the
ous recommendation, the officer will have point of requesting identifying informa-
to articulate what it was about the per- tion.
son who was stopped that led to objective
38. To take the example of the man with
and credible grounds to suspect that the
the crowbar, in my view, no part of the
identifying information would be of as-
reason for the question “why are you
sistance.
carrying a crowbar in an alley at night”
35. The current wording of the Regu- should relate to the person’s racial back-
lation leaves the door open to potential ground, even if no identifying informa-
misuse of authority. For example, under tion is subsequently requested.
the current Regulation, an officer could
39. It is possible that some groups are
see a bicycle in an empty parking lot that
asked general, non-identifying questions
might be stolen or could be stolen if it is
118 The Independent Street Checks Review

more often than others. To that extent, gathering of information would support
the Regulation does not ensure that all non-discriminatory interactions.
police–public interactions are conducted
without bias or discrimination but rather
Recommendation 6.3
only those interactions in which identify-
ing information is requested.
Officers should be trained and
40. As I have already noted in Chapter 4, informed that they should
some interactions between the police and have articulable reasons for
the public are already subject to much initial inquiries and gathering
stronger protections than those contained of information. No part of the
in the Regulation: detentions, arrests and reasons for the initial inquiry
searches are subject to Charter protec- or gathering of information
tions. may be a ground prohibited by
the Regulation.
To ensure all encounters are
conducted without bias, a
standard of conduct should be
established that would apply
any time that police officers ask
individuals questions based on
more than mere suspicion, but
less than reasonable suspicion, of
an offence.

41. To ensure all encounters are con-

ducted without bias, a standard of conduct
should be established that would apply
any time that police officers ask individ-
uals questions based on more than mere
suspicion, but less than reasonable suspi-
cion, of an offence. It would be impractical
for all of the Regulation’s requirements
for collecting identifying information to
also apply to such interactions. However,
a requirement for officers to be able to ar-
ticulate reasons for the initial inquiry or
 Chapter 7
Duties Relating to Collection
of Information
 Chapter 7 • Duties Relating to Collection of Information 121

Introduction able to accept an intrusion into their lives

1. What are police officers’ duties when when they know the reason why and that
identifying information is requested and reason appears to make sense. People are
collected? That question is addressed in even more able to accept the intrusion
section 6 of Part III of the Regulation. when the police officer treats them po-
In addition to the duties specified in the litely and with respect.
Regulation, police officers must follow 5. A person who is questioned should
the procedures established by the chiefs be thanked for stopping, particularly if
of police. 238 the person volunteered personal informa-
2. This chapter will examine and make tion. If the person who is stopped has a
recommendations on: procedural jus- question about the process, it should be
tice and civility in interactions with the answered by the police officer when pos-
public; the duty to inform individuals of sible. It should be borne in mind that no
certain things before attempting to col- matter how respectful and polite a police
lect identifying information; the timing officer may be in a regulated interaction,
of the rights notification; informing the a good attitude will not justify an other-
individual about the use of the collected wise improper request for identifying in-
identifying information; why certain in- formation.
formation is being requested; the duty to
provide a receipt; the form and contents
of the receipt; the duty to record the rea- Public confidence in the police
son for collecting identifying information; is promoted when the police are
other information that should be specific- perceived to be acting legitim-
ally recorded; and the duty to record in-
ately.
formation in non-regulated interactions.

Procedural Justice and Civility 6. In more than one jurisdiction, I

3. The Regulation involves voluntary heard from members of the public who
interactions with members of the public had asked a police officer for the officer’s
in circumstances where the individual is name or badge number in a non-regulat-
under no legal obligation to provide iden- ed interaction, and the officer refused to
tifying information or even to speak to provide it. This occurred despite the fact
the police officer. that most police services in Ontario have
internal regulations that require uniform
4. Public confidence in the police is pro- officers to produce their identification
moted when the police are perceived to when requested by a member of the pub-
be acting legitimately. Acting in a pro- lic. If police officers are asking members
cedurally fair manner promotes the per- of the public to voluntarily identify them-
ception of legitimacy. People are better
122 The Independent Street Checks Review

selves, the officers should be willing to do iour. They follow the law not out of fear
the same thing themselves. Members of of punishment for breaking the law, but
the public should also be made aware that because their attitudes and behaviour
most police uniforms display the officer’s have been shaped to do the right thing
surname and badge number and where to simply because they know that it is the
locate that information on the uniform right thing to do.
(e.g. hat, shoulder epaulettes).

7. Police legitimacy is enhanced when

an encounter is conducted with proced- When people perceive that they
ural justice. Procedural justice is charac- have been treated fairly and
terized by neutrality, voice, respectfulness, with procedural justice, they are
openness and dignity.239 Procedural justice
more likely to trust the police
has been described as including four core
qualities or values: citizen participation; and to cooperate with them.
neutrality in decision making; dignity and
respect; and trustworthy motives.240
11. The qualities and values of procedural
8. In other words, if police officers justice should apply to all police–public
question people for reasons that do not interactions, even those that do not qualify
involve the person’s physical appearance as regulated interactions. If a police offi-
and calmly and respectfully explain the cer asks an individual to provide informa-
rationally supportable reasons for asking tion other than identifying information,
the questions, the person is more likely to the individual still should be treated with
view the officer’s actions as being legit- respect.243 Many police services in On-
imate. tario emphasize the importance of civil-
9. When people perceive that they have ity toward the public in their policies and
been treated fairly and with procedural directives. Some have adopted the “first
justice, they are more likely to trust the contact” approach, which encourages po-
police and to cooperate with them.241 lite and respectful interactions with the
public on the part of police officers.
10. When the police are seen to be acting
legitimately, people are generally more 12. The respect that a police officer is ex-
likely to follow police directives, actively pected to show to a person who is stopped
cooperate by reporting crime, cooperate in may not always be reciprocated by the
investigations, provide witness evidence person being questioned, even when the
and even intervene in low-level deviance officer calmly and rationally explains the
and incivility.242 They defer to authority, situation. That is an unfortunate reality
comply with police commands during an of such encounters. However police offi-
encounter and self-regulate their behav- cers obtain their status as police officers
 Chapter 7 • Duties Relating to Collection of Information 123

because they are expected to be of high the request. Evidence from the United
character and we expect more from them, Kingdom suggests that the people most
including the need to treat people with likely to be stopped and questioned by
respect. I am certain that the vast majority police were also the ones least likely to be
of police officers engage in the execution provided with an explanation of the rea-
of their duties with the utmost respect son for the stop.245
and professionalism. However, the public
16. A police officer is not required to
nature of policing results in negative per-
inform individuals of their right not to
ceptions even when a small number devi-
provide the information or the reason for
ate from that standard.
the request if doing so might compromise
the safety of an individual, including the
Recommendation 7.1 safety of the police officer requesting the
information.246
Requests for information
should be conducted in a 17. A police officer is not required to
professional and civil manner inform the individual of the reason for
that respects the individual the request for identifying information
and inspires confidence in the if the officer believes that informing the
police and their interactions individual would likely: compromise
with the public. an ongoing police investigation; allow a
confidential informant to be identified;
or disclose the identity of a person con-
Duty to Inform
trary to the law, including disclosing the
13. The first duty currently specified in identity of a young person contrary to
the Regulation is the duty to inform in- the Youth Criminal Justice Act (Canada).247
dividuals of certain things before an at- In those circumstances, police officers still
tempt is made to collect identifying in- have to inform individuals of their right
formation. not to provide identifying information,
14. The Regulation states that police of- just not the reason for making the request.
ficers not attempt to collect identifying 18. If an officer does not inform individ-
information unless they have informed uals of the right not to provide identifying
individuals that they are not required to information or the reason for the request,
provide the identifying information and the officer must be able to articulate rea-
why the officer is attempting to collect sons for not doing so. The reasons must
the identifying information.244 relate to the particular circumstances of
15. These requirements help to ensure the the interaction.248
voluntariness of the information provid- 19. Some police services have noted that
ed. They also increase the legitimacy of advising people that they do not have to
124 The Independent Street Checks Review

answer questions makes it difficult for 23. Often the police argue that criminal
police officers to interact with the pub- gang members are no longer fearful of the
lic, and may prevent them from obtaining police and are acting in a brazen manner
useful information. due to a perception that street checks
have been curtailed. There is an import-
20. The reality is that, in many inter- ant distinction to be made here. As I pre-
actions, people are not legally obliged to viously stated, at no point in time were
provide identifying information to police any lawful authorities taken away from
officers. It is important to note that, in the police. Police attention had expanded
the context of this Regulation, no law- beyond simply identifying people who are
ful authorities were taken away from the engaged in criminal activity. What ap-
police. The obligation of police to inform pears to have ceased is the effort on the
citizens that they do not have to provide part of the police being focused on active
identifying information promotes trans- criminals. Under the former (for lack
parency and ensures that both the officer of a better phrase) street check regime,
and the citizen understand the legalities large populations were captured with
of the situation. the same net. Proactive efforts targeting
21. As was noted earlier in this report, active criminals ought to remain within
regulated interactions are very limited in the confines of the law. Policing efforts
frequency and scope. For inquiries, they should be focused on specific individuals
are limited to situations involving ac- – not the tracking of entire communities.
tivities that are objectively and credibly 24. For the average person, who may not
suspicious or where there is less than rea- know their legal rights in these situa-
sonable suspicion of an offence but more tions, the fact that there is no obligation
than mere suspicion. For the gathering of to provide identifying information is use-
information for intelligence purposes, the ful information. The civilian survey under
interactions are limited to face-to-face the Review indicates that almost half of
encounters in which identifying informa- people stopped as pedestrians felt that
tion about the individual is requested. they would get into trouble with the po-
22. Police often wish to obtain identi- lice if they did not cooperate with a police
fying information from gang members. officer, including by providing identifying
Members of a gang may be well aware of information when requested. There ap-
their legal rights, particularly if they have pears to be a significant gap in the gener-
had extensive experience in the criminal al public’s knowledge of their basic legal
justice system. Advising these individ- rights during an interaction with police.
uals that they do not have to answer an The civilian survey confirmed what the
officer’s questions is unlikely to have a Supreme Court of Canada has already
negative impact on the level of crime in a stated:
particular area.
 Chapter 7 • Duties Relating to Collection of Information 125

Most citizens are not aware of the When to Advise as to the Individual’s
precise legal limits of police author- Rights
ity. Rather than risk the application of
27. As discussed earlier, the police officer
physical force or prosecution for wil-
is under no obligation to advise a person
ful obstruction, the reasonable person
that they do not have to provide identify-
is likely to err on the side of caution,
ing information at the start of the conver-
assume lawful authority and comply
sation but only at the point before identi-
with the demand.249
fying information is requested.

28. Some stakeholders asked that indi-

Policing efforts should be focused viduals be informed of the right not to
provide identifying information at the
on specific individuals – not the
start of the interaction rather than im-
tracking of entire communities. mediately prior to the request for identi-
fying information.
25. With the benefit of the warning 29. In the example of the man with the
from the police officer, as required by the crowbar in the alley discussed in Chapters
Regulation, the person can gauge the rea- 5 and 6, that would require a police officer
sonableness of the officer’s explanation to state something like: “You do not have
for needing the identifying information to provide identifying information, but
against any concerns about possible mis- why are you carrying a crowbar in an alley
use of the information. Particularly for at night because that seems odd?”
marginalized or racialized communities,
there is a perception that no good can 30. Requiring such a statement at that
come from providing identifying infor- point is artificial and unnecessarily limits
mation to a police officer. That concern the ability of police officers to make sim-
is well founded given the relatively hap- ple inquiries.
hazard way that some police services col- 31. Useful information can be obtained
lected identifying information in the past without requiring people to identify
and then misused that information in po- themselves. It is only at the point when
lice record checks. the officer decides to ask the person to
26. Only when both sides of an inter- provide identifying information that the
action clearly understand the rights, obli- person should be advised they are not ob-
gations and authorities at play can there liged to provide it. This allows for casual
be trust and transparency. Both sides of conversation or simple inquiries without
the interaction must understand the rules triggering the operation of the Regula-
of engagement. tion.
126 The Independent Street Checks Review

32. An appropriate compromise is to re- swer the individual’s questions about the
quire that the information be provided to collection.250
individuals before any request is made for
identifying information. In simple terms, 35. While there is an exemption from
a police officer’s inquiry into suspicious those provisions of those Acts for law
activities should not proceed from “who” enforcement reasons, there remains a
to “why”, but rather start with “why” and, compelling reason to let people know the
only if necessary, continue to “who”. reason why the identifying information is
being requested and how it will be used.251

Why Some Information is Being

Useful information can be ob-
Requested
tained without requiring people
36. The Anti-Racism Act, 2017 and its as-
to identify themselves. sociated regulation require the Minister
of Community Safety and Correctional
Services to collect information in certain
Other Matters that Should be Stated
matters by January 1, 2021, including in-
to a Person who is Questioned
formation on the individual’s Indigenous
How the Collected Information will be identity, race, religion and ethnic origin as
Used provided by police services.252
33. Some stakeholders recommended 37. The information is to be collected in
that individuals also be advised that the order to conduct research and analysis for
personal information they provide could policy and program development, system
be retained in a police records manage- planning and the evaluation of service de-
ment system. This is congruent with a livery and outcomes in respect of policing
truly informed and voluntary consent to and related matters.253
provide identifying information.
38. The Regulation currently requires
34. Under the provincial and municipal information on an individual’s race and
freedom of information legislation, where ethnic background – but not their reli-
personal information is collected on be- gion – to be recorded. The Anti-Racism
half of an institution, the person from Act, 2017 and its regulation will require
whom the information is collected is to that information to be recorded. Presum-
be informed of: the legal authority for ably the concern is to ensure that the pro-
the collection; the principal purpose or vision of government services, including
purposes for which the personal informa- police services, is not influenced by a per-
tion is intended to be used; and the title, son’s religion.
business address and business telephone
number of a public official who can an- 39. In a regulated interaction, a person’s
religion may not be apparent to the police
 Chapter 7 • Duties Relating to Collection of Information 127

officer. A person who is asked to identify its interactions with the public. For
their religion may well wonder why they greater certainty, police shall advise in-
are being asked. The person should be in- dividuals, at the beginning of the C2I
formed that some information is being of their right not to interact, including
requested to identify and monitor sys- their right to walk away, not providing
temic racism and racial disparities for the their identification, or not responding
purpose of eliminating systemic racism to questions. Should there be a lan-
and advancing racial equity, as required guage or accessibility or mental health
by section 6 of the Anti-Racism Act, 2017. barrier, police shall make all reasonable
attempts to access the appropriate re-
Voluntary Participation and the Right sources to ensure the individual under-
to Walk Away stands their rights and purpose of the
40. Many stakeholders, after viewing the C2I.
initial draft Regulation, requested that 43. The Regulation properly requires
individuals also be informed of their right that police officers advise a person who
to walk away from the interaction with- is stopped that the person does not have
out providing any identifying informa- to provide identifying information. How-
tion. The benefit of advising people about ever, if an individual is not informed that
the right to walk away from such inter- their participation is voluntary (as op-
actions has been noted several times in posed to the right not to provide iden-
court decisions.254 tifying information, in which there may
41. Advising members of the public of be a mute detention), it can raise issues of
the right to leave did not make it into the arbitrary detention under section 9 of the
final Regulation and, in fact, was removed Charter. This can happen even though the
from the draft Regulation.255 Instead, it Regulation specifically attempts to pre-
was replaced with the requirement to ad- vent the street check from being arbitrary.
vise people of their right not to provide 44. Furthermore, if an individual is not
identifying information. informed that their participation is vol-
42. The London Police Services Board in untary it can trigger section 10 of the
its policy has included the following: Charter which entitles a person who is
detained to be informed promptly of the
All C2I’s [i.e. collection of identifying reason for the detention, as well as to ob-
information] must be conducted in a tain and instruct counsel and to be in-
professional and civil manner that re- formed of that right.
spects the individual, adheres to the
law (including Ontario Regulation 45. If an individual is not informed that
58/16 of the Police Services Act) and their participation is voluntary, the inter-
inspires confidence in the police and action could be considered a psychologic-
al detention that is subject to the Charter.
128 The Independent Street Checks Review

This is because police officers can create Again, this only applies to the limited
an intimidating presence. The possibil- situations where the Regulation applies.
ity of psychological detention is realistic,
48. It also is not enough to simply inform
even when people are told that they do
people that their participation is voluntary
not have to answer questions.
if they are informed of that right in a way
that suggests attendance and compliance
If the individual is properly is required. Sometimes the language used
and clearly informed that their by a police officer, although phrased in
participation is voluntary, then the form of a request, may be reasonably
construed as a direction or command.256
there not will be any concern This could be done in many ways, such as
that there was a detention. the tone of the officer’s voice or the officer
blocking or surrounding the person being
46. Some police services have adopted a questioned, holding on to their posses-
policy that, if an officer begins to suspect sions, resting one hand on their duty belt
that the individual being questioned may or gun while asking questions, and so on.
feel psychologically detained, the offi- There may be no negative intent on the
cer should advise the individual that the part of the police officer, but awareness of
interaction is voluntary and the individ- the situation is crucial.
ual may leave. This policy is subjective and
49. If the individual is properly and clear-
allows for people to be psychologically
ly informed that their participation is vol-
detained without the officer knowing it.
untary, then there not will be any concern
It is preferable to eliminate any possibility
that there was a detention. Any informa-
of psychological detention by informing
tion provided would be given on a volun-
the person that their participation is vol-
tary basis.
untary in all situations before requesting
identifying information. Some police ser- 50. To further eliminate any potential
vices have addressed this in their oper- claim that a person was involuntarily de-
ational policies by requiring officers to tained, even psychologically, the Regu-
inform individuals that they are free to go. lation should also require that people be
told that their participation is voluntary
47. Rather than advising people that
in a tone and manner consistent with
their participation is voluntary, they do
that right. This should be done before
not have to provide their identifying in-
any identifying information is requested,
formation and they can leave, it is simpler
although it is not necessary to do so at
to clearly advise only that their participa-
the start of the interaction. Police officers
tion is voluntary. Voluntary participation
should repeat or paraphrase the statement
necessarily means that the person does
if they are concerned that the individual
not have to remain or answers questions.
does not understand the information.
 Chapter 7 • Duties Relating to Collection of Information 129

This is particularly important if there is Supporting Documents

a possible language, accessibility or men- 51. Sometimes police officers ask indi-
tal health barrier, or if the individual is a viduals to provide identifying documents
young person. such as a driver’s licence to confirm their
identity.
Recommendation 7.2
52. Some police services have adopted a
Before identifying information policy that states police officers cannot
is requested, individuals should request supporting documents in a regu-
be informed of the following: lated interaction. If such a document is
requested, it should not be held for longer
(a) the reason for the request
than is necessary.
to provide identifying informa-
tion;
(b) that, if the individual pro- Recommendation 7.4
vides identifying information,
the information may be record- If an individual is requested to
ed and stored in the police rec- produce an identification docu-
ords management system as a ment in a regulated interaction
record of this interaction; and the individual voluntarily
(c) that participation is volun- complies, the identifying docu-
tary; and ment should be retained for
(d) that, if they chose to provide no longer than is necessary
information, some of the iden- to verify the information that
tifying information that may be had been provided, and should
requested, such as the person’s then be immediately returned
religion, is being requested by to the individual.
law to help eliminate systemic
racism.
Requests Made to Children
53. Some stakeholders recommended
Recommendation 7.3 that minors – defined as anyone under
the age of 18 – be advised of their right to
Officers should be trained to in- contact a parent or guardian, and to have
form individuals of the above- such a person present when being asked
noted rights in a tone and man- if they consent to provide identifying in-
ner that does not convey the formation. The Ombudsman for Ontario
message that compliance is re- recommended that street checks be pro-
quired. hibited for minors entirely.257 The Youth
130 The Independent Street Checks Review

Criminal Justice Act recognizes that, in the which must include the ability to ques-
criminal justice context, there should be tion young people. If a young person or
enhanced procedural protections to en- child is truly acting suspiciously, there is a
sure that young persons are treated fairly duty on a police officer to inquire. Regu-
and their rights are protected.258 lated interactions should be very brief. If
the interaction subsequently leads to an
54. Under the new Police Services Act, 2018 arrest or other sanction, the Youth Crim-
(as it is currently tabled), police services inal Justice Act requires the police officer
boards and the Minister will be required to notify a young person’s parents.261
to prepare and adopt a strategic plan for
policing that includes interactions with 57. However, the Regulation should en-
minors, members of racialized groups, sure that police officers do not request
First Nations, Inuit and Métis commun- identifying information from children
ities, and persons who appear to have a under age 12 without a parent or guard-
mental health condition.259 ian present. Further, identifying informa-
tion should not be collected from children
55. Allowing police officers to question
under age 12 purely for the purpose of in-
minors may not promote public confi-
telligence gathering. Children of this age
dence. As I explored earlier and heard in
cannot be expected to fully understand
my consultations, street checks can have
the potential consequences of providing
a particularly negative impact on youth.
their personal identifying information
This is especially the case if the minor
to the police. At such a young age, being
is under the age of 12 and a parent or
subject to a street check could be highly
guardian is not present. The Youth Crim-
damaging – especially without a parent
inal Justice Act recognizes that only young
or guardian present – and the identifying
persons aged 12 or older are held account-
information collected would likely be of
able in the criminal justice system.260 This
little value.
is important because, as I have heard in
my consultations, street checks have been
experienced by children in Ontario as The Regulation should ensure
young as 10 or 11 years old. that police officers do not request
56. It is not realistic to completely ban identifying information from
street checks for minors. Gang member- children under age 12 without
ship, for example, often starts when in- a parent or guardian present.
dividuals are under age 18. I have heard
that gangs will often utilize younger gang
58. In a regulated interaction, where
members knowing that those who are
it appears that a person who is stopped
not legally considered to be adults have
might be under age 12, an inquiry should
greater legal protection. The police must
be made as to their age. I note that police
have the tools to address such issues,
 Chapter 7 • Duties Relating to Collection of Information 131

should err on the side of caution in their

estimation of age, given that I have heard guardian readily available, and
of instances where young children appear the individual is under the age
to be much older than they are because of of 12, the police officer should
their size or physical maturity. If the per- not request any identifying in-
son is under age 12, a parent or guardian formation from the individual.
should be present for the questioning. (d) Subsections (a) to (c) do
not apply if the police officer is
59. Finally, if the purpose of the street
conducting a well-being check,
check is to check on a child’s well-being
confirming the identity of a
or identify a missing or runaway child,
missing or runaway child, hu-
human trafficking victim or other vic-
man trafficking victim or other
tims of crime, it should not be necessary
victims of crime, or in a situa-
to have a parent or guardian present. As
tion of urgency.
explained above, in such cases the Regu-
lation would not apply in any event.
Duty to Provide a Receipt
Recommendation 7.5
60. The Regulation requires that an in-
dividual who has been questioned by the
police in a regulated interaction be given
(a) Where it appears the indi- a document – often referred to as the “re-
vidual stopped in a regulated ceipt” – that provides a record of the at-
interaction may be under the tempt to collect the information.262
age of 12 years old, the individ-
ual should be asked their age 61. The officer is required to offer the re-
before they are asked to pro- ceipt to the individual and also give it to
vide other identifying informa- the individual if it is requested, whether
tion. If the individual is under or not any identifying information was
12 years old, a request should actually collected.263
be made as to whether there 62. This section of the Regulation was in-
is a readily available parent or tended to promote public confidence. Pro-
guardian who can attend dur- viding receipts to people who are stopped
ing the regulated interaction. helps keep police officers accountable for
(b) If there is a readily available their behaviour and their motives when
parent or guardian, the regu- requesting identifying information.
lated interaction should take
place in the presence of that 63. The information currently required
person. to be included on the receipt is: the of-
ficer’s name and officer identification
(c) If there is no parent or number; the date, time and location of
132 The Independent Street Checks Review

the attempted collection; how to contact 67. The Regulation requires that the per-
the Independent Police Review Director; son who is stopped be informed, at least
and the individual’s right to request ac- verbally, of the reason for the request for
cess to information about themselves that identifying information.265 The receipt
is in the custody or under the control of a that is provided to the person does not
police service through a Freedom of Infor- necessarily provide the reason. Some po-
mation Act request.264 lice services now require that the receipt
also contain the reason for the regulated
64. The Regulation provides for the min- interaction.
imum amount of information that must
be included on the receipt. No receipt When Receipts Need Not be
template or sample receipt was provid-
Provided
ed to police services by the provincial
government. Some police services have 68. Section 8 of the Regulation works in
developed policies that include addition- conjunction with sections 5, 6 and 7 by
al information. There is inconsistency requiring officers to record their reasons
among jurisdictions in terms of the infor- for: making the request for identifying
mation included on the receipt and what information; not advising an individual of
it looks like. their rights prior to requesting identify-
ing information; or not offering or giving
65. For example, some police services the receipt.
have the wording on the receipt set out in
both English and French, whereas others 69. A police officer is not required to
are just in English. Some police services either offer or give a receipt if continu-
boards wanted the receipts to be num- ing to interact with the individual might
bered, but others did not. Some receipts compromise the safety of an individual or
list whether the individual was offered or delay the officer from responding to an-
accepted the receipt whereas others do other matter that should be responded to
not. Some refer to the Regulation and immediately.266
where the Regulation may be accessed, 70. As a result, if police officers perceive
or list the three reasons allowed by the that their own safety is compromised
Regulation for collecting identifying in- through continued interaction with an
formation. individual, then they do not have to of-
66. Some services simply provide the fer or provide a copy of the receipt to the
contact information for the Office of the individual.
Independent Police Review Director, 71. The police officer must be able to ar-
whereas other police services state that ticulate the reasons for not offering or
“complaints” can be made to that Direc- giving the receipt, including details relat-
tor. ing to the particular circumstances.267 As
 Chapter 7 • Duties Relating to Collection of Information 133

a result, the police officer should be able in any event. Including the reason on the
to state whose safety was compromised receipt is a natural and minimal extension
and why it appeared to be compromised, of the already articulated duties.
or the urgent matter the officer was called
to attend.
Allowing different police servi-
72. The Regulation currently requires
chiefs of police or their designate to ran-
ces to include varying amounts
domly sample the data to ensure that of information on the receipt
there has been compliance with section results in inconsistency in inter-
7.268 That review should involve more actions between the police and
than simply ensuring there was a stated the public.
reason for not providing the receipt. It
should also ensure that the stated reason
was realistic and supportable under the 75. Many police stakeholders have sug-
circumstances. gested that including information on the
receipt about how to make a complaint
Contents of the Receipt encourages frivolous complaints and is
73. Allowing different police services to entirely negative in approach. Individ-
include varying amounts of information uals might not have considered making a
on the receipt results in inconsistency in complaint about an interaction until they
interactions between the police and the are presented with a card that tells them
public. Given that a central feature of the how to do it. Providing information on
Regulation is to promote consistency and the complaint process suggests the police
standardization across Ontario, a stan- officer is doing something wrong.
dardized receipt should be used by all po- 76. Although the Office of the Independ-
lice services. ent Police Review Director has reported
74. It is important to include a space on no complaints related to regulated inter-
the receipt for the officer’s reason for the actions since January 1, 2017, police ser-
regulated interaction. Providing the rea- vices across Ontario have reported that
son gives clarity to the individual who the inclusion of complaints information
was asked for identifying information. on the receipt has had a chilling effect on
It could also help weed out unnecessary the willingness of police officers to en-
complaints when it appears the stop was gage with the public. Handing out a re-
reasonable. This requirement is also not ceipt with information on how to make a
an onerous one given that, as required by complaint makes police officers feel they
section 8 of the Regulation and noted in are doing something wrong even dur-
subsequent sections of this chapter, offi- ing justified interactions. Police believe
cers must record the reason for the request that people might be inclined to make a
134 The Independent Street Checks Review

complaint based on a misunderstanding failing to comply with the requirements

of the Regulation or because they mis- of the Regulation during interactions that
takenly believe the police officer has done are deemed to be regulated.
something wrong. Officers want to avoid
80. Second, it appears that the confusion
the complaints process altogether even if
over the application of the Regulation
the complaint is ultimately dismissed.
is shared by people who are engaged in
77. There are circumstances when police criminal activity. Police stakeholders have
officers should engage with the public or advised that information obtained from
are under a duty to engage with members confidential informants or through the
of the public. A police officer should in- use of authorized wiretaps indicates a
vestigate situations that objectively ap- widespread belief among criminals that
pear to be suspicious, even if there is no the police have been hamstrung by the
reasonable belief an offence actually has Regulation. This belief has emboldened
been committed. Creating a disincentive criminals to engage in activities such as
for police officers to do so by including carrying weapons out of a mistaken per-
very limited information on the receipt, ception that the police cannot stop and
with advice about how to make a com- question them or, at the very least, that
plaint being part of that limited infor- the police are so concerned about the
mation, may act to prevent necessary and Regulation that they are unlikely to stop
proper interactions. A better approach and question them.
would be for the Ministry to provide in-
81. As I noted earlier, there is little in the
formation on the complaints process as
Regulation itself which would increase
part of its public education initiatives,
the rate of crime when the Regulation is
which we explore in Chapter 9.
properly understood and applied. How-
78. The Regulation’s requirement that po- ever a mistaken belief or confusion about
lice officers provide a receipt was intended the operation of the Regulation, shared
to balance the interests of accountability by both police and active criminals, could
with that of community safety. Unfortu- result in an increase in crime. In other
nately, unintended consequences have words, perceptions about the Regulation
flowed from that requirement. rather than the Regulation itself may have
resulted in an increase in certain types of
79. First, many police officers have dis- crime.
engaged from interacting with the public
because of concerns about public com- 82. To strike a proper balance, the receipt
plaints. This disengagement has been provided to an individual should indicate
exacerbated by confusion about exactly only: the name and identification number
which interactions qualify as regulated of the police officer; the date, time and
interactions and which do not, as well location of the regulated interaction; and
as the possibility of being sanctioned for the reason for the regulated interaction.
 Chapter 7 • Duties Relating to Collection of Information 135

Providing this information would still Duty to Record the Reason for
ensure accountability and allow for easy Collecting Identifying Information
identification of the incident in question
83. When a police officer attempts to
as well as the reason for the request, while
collect identifying information, the offi-
reducing the disincentive for police offi-
cer must record certain information. The
cers to engage in proper interactions.
information that must be recorded, which
is set out in section 8 of the Regulation,
Recommendation 7.6 includes the reasons for the attempted
collection and whether the proper pro-
cedures were followed.
The information required to
be on the receipt should be 84. Some of the benefits of creating these
standardized across Ontario records include helping officers to refresh
and set out in both official lan- their memories if their reason for the stop
guages. is subsequently challenged and, where
necessary, providing a means of holding
police officers accountable if they misuse
their powers. The requirement to record
Recommendation 7.7
this information may also cause police
officers to think carefully about wheth-
The receipt should contain only: er they have adequate reasons to request
the name and badge or identi- identifying information before the re-
fication number of the police quest is made. It is important to stress
officer; the date, time and lo- – not only to those officers who work
cation of the regulated inter- within the communities in uniform but
action; and include an area for to those in management who shape poli-
the officer to record the reason cies and procedures – that the value of an
for the regulated interaction. officer’s activities should be grounded in
quality and not quantity.

85. Some police services have created

Recommendation 7.8 forms in which the police officer records
the reason for collecting identifying in-
formation by simply checking off one of
The receipt provided to the in- three boxes. The three boxes are: to in-
dividual should be a numbered quire into an offence; to inquire into a
carbon copy or identical copy suspicious activity; or to gather informa-
of what is retained by the po- tion for intelligence purposes.
lice officer.
86. Some of the policies also set out that,
136 The Independent Street Checks Review

when the police officer is required to in- variations among jurisdictions.

form an individual of the reason for re-
90. Some information is not currently ex-
questing identifying information, the of-
pressly required to be recorded but must
ficer should simply state that the request
be recorded as a matter of practice for the
relates to one of those three situations. The
enforcement mechanisms of the Regula-
same policies then require that specific
tion. This information includes: the date,
reasons be recorded if a person is not in-
time and location of the stop; and the age,
formed about their rights or not provided
gender and race of the person stopped.
with a receipt in a regulated interaction.
91. The information contained on the
87. The information that is recorded and
section 7 receipt provided to the indi-
provided to the individual about the rea-
vidual – such as the officer’s name and
son for the request for identifying infor-
identification number, and the date, time
mation should be more specific to the
and location of the attempted collection
situation, such as what offence was being
– should also be recorded on the section
inquired about or what about the individ-
8 record. As it stands, if an individual
ual’s activity was considered suspicious.
does not request a receipt, the recording
88. Some police services have included in requirements do not specifically require
their computer program a section in which that this information be listed.
a narrative or synopsis of the event can be
92. To ensure consistency, all information
recorded, while others include a section
that must be recorded in order to imple-
to explain the details about the individual
ment the Regulation should be expressly
that caused the officer to believe identi-
required to be recorded.
fying the individual would assist with an
inquiry or gathering of information for 93. As already noted, the Anti-Racism
intelligence purposes. All police services Act, 2017 requires the collection of infor-
should require a better explanation for mation about an individual’s religion for
requesting identifying information other policing and related matters. Should an
than the request falls within one of the individual volunteer that information, it
three allowed situations. also should be recorded.

Other Information that Should be 94. It is difficult to assess the efficacy of

Specifically Recorded regulated interactions given the informa-
tion currently required to be recorded. A
89. The Regulation requires the officer to
regulated interaction is allowed because
record other information that the chief
the officer reasonably suspects that ob-
of police requires be recorded.269 Again,
taining the identifying information will
since chiefs of police can establish their
assist in an inquiry into offences or sus-
own procedures as to what other infor-
picious activities or in efforts to gather
mation officers must record, there can be
information for intelligence purposes.
 Chapter 7 • Duties Relating to Collection of Information 137

Whether the regulated interaction was

successful in that regard is not something for the stop or the attempt to
that is required to be recorded. collect identifying information;
95. Was identifying information provid- (b) whether the individual re-
ed by the person who was stopped and, fused to provide identifying in-
if that information was provided, did it formation;
assist with the police officer’s inquiry? (c) any relevant suspect pro-
Because that information is not required file or intelligence report relied
to be recorded, one cannot determine upon to make the request for
from the data whether stops were made information;
disproportionately but not whether they
(d) the time, date and duration
were effective.
of the stop;
96. If there was a positive encounter, it (e) the location of the stop;
should be recorded. Similarly, if the en-
(f) the name and religion of the
counter was not positive – for example,
person stopped, if it is volun-
if the regulated interaction escalated to a
tarily provided;
more confrontational situation – that also
should be noted. (g) the age group, gender, race
and ethnic origin of the person
97. Currently the recorded data can be stopped, as perceived by the
analyzed only as to whether requests police officer – if the person
for identifying information were made stopped voluntarily provides
disproportionately. Of equal or perhaps this information, it also should
greater concern is what happens after be recorded;
a person is stopped. If some groups are
(h) whether the person was re-
frisked, searched or subjected to a use of
quested to provide a document
force in a regulated interaction more than
confirming their identity, and if
other groups, that information should be
so, why the request was made;
readily available from the recorded infor-
mation. (i) an indication if any frisk or
search was conducted and, if
so, the reason for the frisk or
Recommendation 7.9 search and whether the per-
son consented to the frisk or
A police officer in a regulated search;
interaction should record the (j) an indication as to whether
following: any force was used and, if so,
(a) the officer’s specific reason the reason why force was used;
138 The Independent Street Checks Review

(k) an indication if any person (q) whether the individual was

was injured or any property informed of the information
damaged or confiscated as a as required by section 6 of the
result of the regulated inter- Regulation or, if informing the
action and, if so, the reasons; individual was not required,
(l) any further action taken as the reason why that was not
a result of the regulated inter- required; and
action, such as a warning or ar- (r) whether the individual was
rest; offered or given the receipt as
(m) an indication as to required by section 7 of the
whether there were any other Regulation or, if offering or
people accompanying the per- giving the receipt was not re-
son stopped and, if so, an indi- quired, the reason why that
cation as to the number of was not required.
people, their perceived racial
or ethnic background and an
indication if they also were re-
quired to provide identifying
information;
(n) an indication if the regulat- Recommendation 7.10
ed interaction was successful
in obtaining information need- For requests for identifying in-
ed to satisfy the purpose for formation made from passen-
conducting the regulated inter- gers of motor vehicles, the fol-
action; lowing information should also
(o) the officer’s name, identi- be recorded:
fication or badge number and (a) the traffic violation or other
unit; violation precipitating the stop;
(p) if the individual appears to (b) the reasons why the passen-
be under 12 years old, whether ger was requested to provide
the child was asked if a parent identifying information; and
or guardian was available to at- (c) an indication whether the
tend and whether the regulat- passenger was required to
ed interaction was conducted leave the vehicle and, if so, the
with a parent or guardian; reason why.
 Chapter 7 • Duties Relating to Collection of Information 139

Recommendation 7.11

There should be a standard-

ized, province-wide form on
which the street check data is
recorded either physically or
electronically.

Recommendation 7.12

The forms should include

checkboxes, to record the rea-
sons for making the stop and
require commentary in free
text to articulate those rea-
sons.
 Chapter 8
Inclusion of Collected Information
in Databases
 Chapter 8 • Inclusion of Collected Information in Databases 143

Introduction the provisions of the Regulation relat-

1. The retention of data collected during ed to historical data and making corres-
requests for identifying information – be- ponding recommendations.
fore and after the Regulation came into
force on January 1, 2017 – is a core com- Non-restricted Database
ponent of the Regulation. 6. Information that is not restricted may
be accessed by all members of the police
2. The Regulation sets limits on the service.
identifying information that can be
stored in a police database and who can 7. Identifying information may be en-
access that information. Those issues are tered into the database on a non-re-
addressed in section 9 of the Regulation, stricted basis only if the chief of police or
which allows information to be stored in designate has either: confirmed that the
a police database on either a restricted or way the information was collected com-
non-restricted basis. Chiefs of police are plies with the Regulation; or not yet com-
mandated to ensure compliance with the pleted the required review to determine
requirements of this section.270 compliance.271

3. This chapter will explore: non-re- 8. If something remains to be done, the

stricted and restricted databases, author- chief of police or designate shall conduct
ized access to restricted databases, and a review within 30 days after the infor-
the retention of data and the analysis of mation is first entered into the database.
the information in the database. It will The review is to determine if there was
also make a series of recommendations compliance with the Regulation when
related to these issues. the information was collected. If there
was compliance, the indication that the
4. The Regulation applies only to at- chief ’s review has not yet been complet-
tempts to collect information made on ed can be removed. If compliance cannot
or after January 1, 2017. For the infor- be confirmed within 30 days, the infor-
mation collected prior to that date, the mation must be moved to the restricted
Regulation applies only as provided for in database.272
two subsections of the Regulation, which
require police services boards and chiefs Restricted Database
of police to develop policies and proced-
9. Identifying information is presump-
ures regarding the retention of, access to
tively retained in a restricted database un-
and disclosure of identifying information
less the requirements for allowing the in-
collected before January 1, 2017 – also re-
formation to be stored in a non-restricted
ferred to as historical data – to which the
database are met.273
Regulation would have applied.
10. The Regulation is inconsistent. It re-
5. This chapter concludes by exploring
144 The Independent Street Checks Review

quires that access to identifying informa- 13. During my consultations, I heard

tion be restricted unless it may be includ- that some police services have adopted a
ed in a database that is not restricted.274 policy that access to information obtained
Identifying information that was col- in violation of the Regulation shall be im-
lected in compliance with the Regulation mediately restricted, even at the stage of
does not need to be stored in a restricted the initial review.
database.275 If the information was not
14. Other police services have adopted
collected in compliance with the Regula-
procedures in which an appointed per-
tion, it is stored in a restricted database.276
son, often referred to as a “verifier”, re-
However, identifying information that
views the collected identifying informa-
was obtained in a manner that did not
tion within five to seven days of receipt.
comply with the Regulation can be stored
The review is conducted to ensure that
in a non-restricted database for up to
the information was collected in compli-
30 days while the verification process is
ance with the Regulation. If the review
completed.277 In other words, improperly
indicates further information is required
obtained information can be seen by any-
from the police officer who collected the
one at the police service for up to 30 days.
information, then there is a follow up to
11. That should not happen. The Regu- make sure the information was properly
lation governs information that members collected. If it appears the information
of the public voluntarily provide to the was not properly collected, it is moved to
police. The information should be veri- the restricted database.
fied as being properly obtained before it is
15. Collected identifying information
inputted into any database or, at the very
should automatically be stored in a re-
least, placed in a restricted database until
stricted database unless there is confirm-
it is verified as having been properly ob-
ation that the information was properly
tained.
collected, at which point it may be moved
12. One police service noted that once to the non-restricted database.
the identifying information is placed in
the restricted database, the name of a
Recommendation 8.1
person who provided information will
not show up on a general database check.
The information can be obtained only for The Regulation should state
the limited circumstances set out in the that chiefs of police should en-
Regulation. This highlights the import- sure that every police officer
ance of having the information contained on their police service who at-
in a restricted database because, as long as tempts to collect identifying
it is not restricted, it is widely available. information does so in compli-
ance with this Regulation.
 Chapter 8 • Inclusion of Collected Information in Databases 145

mation that was improperly obtained to

Recommendation 8.2 be retained and used for specific purposes,
as long as the information is kept in a re-
Identifying information should stricted database.
be included in a restricted
18. If the identifying information is
database until it has been con-
found to have been improperly obtained,
firmed that it is in compliance
there may be limited reasons for keeping
with the Regulation and may
it. For example, the stop encounter might
be included in a non-restricted
be needed in a legal proceeding or result
database.
in a complaint against the police officer
who obtained the information. A record
Authorized Access needs to be available as to the circum-
16. No person can access information stances surrounding the stop in order to
contained in a restricted database without respond to the complaint or the proceed-
the permission of the chief of police or ing. Currently such information must be
designate, and permission may be granted stored in a restricted database and may be
only when the chief or designate is satis- used only for the limited purposes set out
fied that access is needed: in subsection 9(10)(2) of the Regulation.

i) for the purpose of an ongoing po- 19. The Toronto Police Service has re-
lice investigation; stricted the ability of a police officer to
obtain restricted information “for the
ii) in connection with legal proceed- purpose of an ongoing police investiga-
ings or anticipated legal proceedings; tion”. Its procedure states that a member
iii) for the purpose of dealing with a may submit a request for access to a re-
complaint under Part V of the Police stricted record “for the purpose of an on-
Services Act or for the purpose of an going police investigation involving:
investigation or inquiry under clause • the preservation of life and/or pre-
25 (1) (a) of the Police Services Act; venting bodily harm or death;
iv) in order to prepare the annual re- • homicides and attempts;
port described in subsection 14 (1) or • sexual assaults and all attempts (for the
the report required under section 15; purpose of this standard, is deemed
v) for the purpose of complying with to include sexual interference, sexual
a legal requirement; or exploitation and invitation to sexual
touching);
vi) for the purpose of evaluating a po- • occurrences involving abductions and
lice officer’s performance.278 attempts;
17. Section 9 allows for identifying infor- • missing person occurrences, where cir-
146 The Independent Street Checks Review

cumstances indicate a strong possibility by clause 9(10)(2) of the Regulation, then

of foul play; a record should be kept as to the identity
• occurrences suspected to be homicide of the person who viewed the informa-
involving found human remains; tion and the reason for viewing the infor-
mation in order to ensure that those who
• criminal harassment cases in which the have viewed the data have done so for an
offender is not known to the victim; authorized reason.
• occurrences involving a firearm or dis-
charge of a firearm, and/or gang related
investigations”. Recommendation 8.3

There should be limited types

Collected identifying informa- of ongoing police investigations
tion should automatically be for which access to restricted
stored in a restricted database information may be obtained.
unless there is confirmation that
the information was properly
collected. Recommendation 8.4

20. Those limitations prevent requests for Whenever a person views infor-
access to restricted information for on- mation in the restricted data-
going police investigations of mundane base, a record should be made
matters such as less serious Highway of who viewed the information
Traffic Act offences. In my view, access and the reason for viewing the
should also be allowed to enable an officer information.
who is the subject of a complaint or who
is the subject of other internal investiga-
tions to respond.
Recommendation 8.5
21. The Toronto Police Service also notes
that the exception allowing access to re-
stricted information for “legal proceed- Information obtained during
ings or anticipated legal proceedings” a regulated interaction should
includes instances where the Crown At- not be shared with any other
torney indicates the information is rel- government agency for any
evant to its disclosure obligations. purpose other than as set out
in subsection 9(10)(2) of the
22. If a police officer accesses the infor- Regulation.
mation for the limited purposes allowed
 Chapter 8 • Inclusion of Collected Information in Databases 147

Retention of Data formation should not be kept indefinite-

23. Access to identifying information be- ly. However, to the extent that the in-
comes automatically restricted after the formation was provided voluntarily with
fifth anniversary of the date on which the knowledge of the consequences, it could
information was first entered into a po- be retained longer than might otherwise
lice database.279 The information is not be the case.
deleted at that time; it is just reclassified
as restricted.
Currently each police services
24. Police officers have noted that if they board is developing its own
first record the identifying information
records retention schedule and
into their memo books before inputting
the information into the database, the there is no consistency across the
information is kept indefinitely in any province.
event because the memo books are not
destroyed. However, memo books do not
allow for the immediate and widespread 28. The PACER report recommended
access that is available when that infor- that the identifying data be destroyed
mation is included in computer databases. after seven years, while the Logical Out-
comes report recommended that it be
25. Currently each police services board destroyed after two years.280 In Saskatch-
is developing its own records retention ewan, as a matter of policy, such data is
schedule and there is no consistency destroyed after five years. Some police
across the province. services in Ontario, such as the London
Police Service, also automatically delete
26. There is no requirement for data to be
the information after five years.
automatically deleted at any point in time.
Many stakeholders are in favour of set 29. The data standards under the An-
timelines for deleting data. In most cases, ti-Racism Act, 2017 require public sector
the data need not be stored indefinitely, organizations to retain de-identified data
although some police stakeholders note for at least one year after it was used by an
that retaining data for a longer period can organization or as otherwise prescribed.281
be useful for investigations of long-term
serial offenders or to solve cold cases. 30. It is recommended that there be a def-
inite time limit for the retention of data,
27. In all regulated interactions, the in- after which time it should be destroyed.
formation recorded after a stop encounter Since any potential complaints, lawsuits
is voluntarily provided. Unless it is ex- or crimes should be known within five
plained to the person at the time when years, the data should be automatically
the information is requested that the destroyed no more than after five years –
information will be kept forever, the in- unless it is actually needed for a purpose
148 The Independent Street Checks Review

set out in clause 9(10)(2) of the Regula- tifying information was collected.282
tion, in which case it should be destroyed
32. The Regulation does not specify the
once it is no longer required for that pur-
size of sample that would be considered
pose.
“appropriate” or how to ensure the sam-
ple is random. As a result, methods could
Recommendation 8.6
vary among police services.

Identifying information should

Recommendation 8.8
be destroyed no later than five
years after it is first entered
Define and standardize an “ap-
into a police database unless
propriately sized random sam-
it is being used for a purpose
ple” needed for data analysis
set out in subsection 9(10)(2) of
by chiefs of police/designates
the Regulation, in which case it
across the province.
should be destroyed once it is
no longer required for that pur-
pose. 33. If the chief of police’s review con-
cludes that information was collected for
a prohibited reason or that the officer’s
duties to individuals were not followed
Recommendation 8.7
when the identifying information was
collected, then that identifying informa-
A police service may elect to tion shall be retained in the restricted
destroy identifying information database.283 Again, the improperly ob-
earlier than five years after it tained information is not destroyed. The
was collected. information is retained in the restricted
database in accordance with the proced-
Analysis of the Information in the ures developed by each chief of police.
Database 34. The chief of police shall consider the
31. At least once a year, the chief of po- results of the detailed review and take
lice or designate shall conduct a detailed such actions as the chief of police con-
review of an “appropriately sized random siders appropriate.284 This requirement
sample” of the entries of identifying in- allows for variation in the appropriate
formation included in a non-restricted response when information has been put
database. The purpose of the review is into a database improperly.
to provide an assessment that the infor-
mation was not collected for a prohibited 35. An appropriate response is for the
reason and that the officer’s duties to the chief of police to ensure that data is col-
individual were followed when the iden- lected in compliance with the Regulation.
 Chapter 8 • Inclusion of Collected Information in Databases 149

This can be accomplished through a gen- Historical Data

eral requirement on chiefs of police to en- 38. As stated at the outset of this chapter,
sure compliance. the Regulation applies only to attempts
36. The chief of police’s review of the to collect information made on or after
identifying information contained in a January 1, 2017.286 For information col-
non-restricted database is an internal lected prior to that date, the Regulation
review. Police chiefs must ensure that applies only as provided for in two sub-
police officers are requesting identifying sections of the Regulation.287
information in the proper situations and 39. Those two subsections require police
following the requirements. services boards to develop policies and
37. Currently the collected data must be chiefs of police to develop procedures for
provided to the Minister of Community the retention of, access to and disclosure
Safety and Correctional Services under of identifying information collected be-
the Anti-Racism Act, 2017 where it can fore January 1, 2017, to which the Regu-
then be de-identified and disclosed for lation would have applied.288 I will refer
research purposes as part of the over- to this information as historical data.289
all strategy to eliminate systemic racism 40. In other words, each police servi-
and advance racial equity.285 The Minister ces board and each chief of police must
should encourage interested parties, such examine all the identifying information
as the Ontario Human Rights Commis- collected before January 1, 2017, and de-
sion, to review the data to determine if termine those to which the Regulation
police officers are requesting identifying would have applied.290
information correctly and only in the
proper situations. 41. The fact that each board must develop
its own policy and each chief of police
their own procedures for managing his-
Recommendation 8.9 torical data may result in variation among
police services and different treatment of
information collected before January 1,
The collected and de-identified 2017.
data should be made available
to reputable independent or- 42. One issue that has arisen is that iden-
ganizations for research pur- tifying information collected by police
poses. services prior to January 1, 2017, often
did not distinguish between the types of
interactions. In the previous computer
modules, “street checks” entries included
both what are now considered regulated
and non-regulated interactions.
150 The Independent Street Checks Review

43. Part of the reason for the significant on the basis that it was improperly col-
decline in the number of “street checks” lected in the first place. 291
since the filing of the Regulation is that
48. Discussions with some police stake-
now only the number of regulated inter-
holders confirm that historical data often
actions is identified, as opposed to the
was obtained in a manner that is contrary
prior category of “street checks” which
to the current requirements of the Regu-
included both regulated and non-regulat-
lation. Because there was no oversight
ed interactions.
of the collection of identifying infor-
mation at the time, the information was
often collected in a haphazard manner
It is recommended that there and might not always have been accurate.
be a definite time limit for the This occasionally led to people being mis-
retention of data, after which identified as being “known to the police”,
time it should be destroyed. which affected their applications for em-
ployment to police services.

49. The Canadian Security Intelligence

44. For the retention of historical data,
Service recently destroyed a large amount
only information previously collected
of its collected associated data or meta-
under what would now be a regulated
data, after a Federal Court decision found
interaction is at issue. In other words,
that the information being retained was
interactions such as an observation report
linked to third parties, unrelated to a
made before January 1, 2017, is not an
threat to the security of Canada and not
interaction that needs to be addressed in
strictly necessary to perform its man-
a policy or procedure.
date.292 Some of the same concerns apply
45. The Regulation does not require his- to historical street checks information.
torical data to be deleted after any specific
50. Some police services boards agreed
period of time as some stakeholders have
that the historical data should be de-
requested (e.g. within two years of collec-
stroyed given its limited usefulness, the
tion).
infrequent requests to access that data and
46. There is no requirement for informa- the negative effect of retaining the data
tion collected in a manner contrary to the on community–police relations. Those
Regulation before January 1, 2017, to be police services noted that the collected
automatically put into a restricted data- information is time sensitive and its value
base or, as was recommended by the Om- diminishes over time.
budsman for Ontario, to be destroyed.
51. Most identifying information col-
47. Many interest groups have requested lected prior to January 1, 2017, would be
that all of the historical data be destroyed, considered a non-regulated interaction
 Chapter 8 • Inclusion of Collected Information in Databases 151

today. Some police stakeholders report poses set out in subsection 9(10)(2) of the
that it would be cost-prohibitive to go Regulation.
through all this data to try to distinguish
54. Given the competing concerns over
what would be considered regulated and
the possibility that information may have
what would not. They also note that de-
been collected without following the pro-
stroying all pre-January 1, 2017, data
cedures in the current Regulation and
could eliminate information that had
the need to retain some of that evidence,
been used to obtain arrest warrants. De-
a proper balance is to: restrict access to
stroying information that supported the
historical data, provide access only in
issuance of a warrant will raise issues re-
accordance with the procedure outlined
lated to the destruction of evidence.
above and destroy the data within a set
time frame – unless the evidence is need-
ed for a reason otherwise contemplated
The fact that each board must
by the Regulation.
develop its own policy and each
chief of police their own pro- 55. Therefore, it is recommended that
historical data also be automatically de-
cedures for managing historical
stroyed five years after it is collected – un-
data may result in variation less it is actually needed for a purpose set
among police services. out in clause 9(10)(2) of the Regulation,
in which case it should be destroyed once
it is no longer required for that purpose.
52. Similarly, if there are potential law-
suits against a police service, the lawsuit
might require access to historical data.
One police stakeholder indicated that Recommendation 8.10
the data may also be useful to assist with
missing persons files.
Identifying information col-
53. As a result of these concerns, one po- lected before January 1, 2017
lice service decided to: put all identifying to which this Regulation would
information collected prior to January 1, have applied had the informa-
2017, into the restricted database – re- tion been collected after Janu-
gardless of whether they would have been ary 1, 2017 (“historical data”)
considered a regulated interaction; limit should be stored in a restricted
the use of that data by, for example, not database and only be used for
allowing it to be used to identify a person a purpose set out in subsection
as being known to the police; and restrict 9(10)(2) of the Regulation.
the use of the information to the pur-
152 The Independent Street Checks Review

Recommendation 8.11

The authorization required

under subsection 9(10)(1) of
the Regulation should apply to
historical data.

Recommendation 8.12

Historical data should be auto-

matically destroyed five years
after it was collected unless it
is being used for a purpose set
out in subsection 9(10)(2) of
the Regulation, in which case
it should be destroyed once it
is no longer being used for that
purpose.

Recommendation 8.13

A police service may elect to

destroy historical data earlier
than five years after it was col-
lected.
 Part V
Operational, Policy
and Procedural
Challenges - Findings and
Recommendations
 Chapter 9
Training of Police and Public
Education
 Chapter 9 • Training of Police and Public Education 157

Introduction police officers on the Regulation and its

1. A central piece of this Review relates implementation in the field.
to the training on the Regulation pro- 4. An equally important part of this
vided to police officers. I was specifically chapter relates to public education and
mandated to report on the curriculum information on the Regulation. Members
and related training materials developed of the public have not been properly and
by the Ontario Police College, and to fully informed about the Regulation and
make recommendations related to the its operation to date, which has led to a
training’s effectiveness. lot of confusion and misinformation. I
will survey the current landscape of pub-
Training is arguably the most lic information on the Regulation before
making a series of recommendations
important part of the Regula- geared to informing the public about the
tion. Regulation’s content and underlying ob-
jectives. I will also explore the importance
2. Training is arguably the most import- of rights- and responsibilities-based edu-
ant part of the Regulation. Requiring po- cation for youth and students, as well as
lice officers to have objective and credible the importance of all students receiving
reasons to request identifying information education on Black and Indigenous his-
and limiting the situations under which tory.
they can request identifying information
addresses the symptoms of a problem, but The Training Requirements
not the underlying cause. It is the training 5. Section 11 of Part IV of the Regula-
that causes police officers to confront and tion considers the training that must be
respond to public concerns, and recognize provided to police officers related to col-
and address the fact that police officers lecting identifying information.
themselves are subject to the same human
6. Any police officer who attempts to
frailties and subconscious motivations as
collect identifying information must have
everyone else.
the required training. The police chief ’s
3. In this chapter, I will first address designate for the purpose of the Regula-
whether the training was delivered effect- tion also must have the required training.
ively and in compliance with section 11 In both cases, the required training must
of the Regulation. I will then discuss the be successfully completed within the pre-
issue of training on a go-forward basis, vious 36 months. 293
including making a series of recommen-
7. The training must be conducted by a
dations. I will also explore the education
trainer with the Ontario Police College,
of police officers more generally and the
using a curriculum approved by the Dir-
development of a Code of Practice for
158 The Independent Street Checks Review

ector of the Ontario Police College.294 10. Given the number of officers who
needed to receive the training over a very
8. The training must include the follow- limited time period, the Ontario Police
ing topics, as set out in the Regulation: College devised a “master trainer” system.
1) The right of an individual not to The training was first delivered to master
provide information to a police officer, trainers from the various police services
the limitations on this right and how who, in turn, delivered training to front-
to ensure that this right is respected. line trainers who then trained the front-
line officers who would engage in regu-
2) The right of an individual to dis- lated interactions. Some police services
continue an interaction with a police also provided the training to more senior
officer, the limitations on this right officers and other staff.
and how to avoid unlawfully psycho-
logically detaining an individual. 11. The development of the training pro-
gram involved a number of challenges.
3) Bias awareness, discrimination and A central problem was the lack of time
racism and how to avoid bias, dis- afforded to appropriately prepare the cur-
crimination and racism when provid- riculum and deliver it to all frontline of-
ing police services. ficers across the province. The speed with
which the Regulation came into effect
4) The rights that individuals have to
did not allow enough time to properly
access information about themselves
prepare.
that is in the custody, or under the
control, of a police force. 12. When we couple the speed at which
the training was prepared and delivered
5) The initiation of interactions with
to frontline officers with some of the
members of the public; and
other problems I will identify below, one
6) This Regulation and its applica- can understand why a misconception de-
tion.295 veloped among police officers that an in-
vestigative tool was “taken away”.
Does the Training Comply with the
13. Throughout the province, I con-
Regulation?
sistently heard from police officers who
9. The training curriculum was de- voiced concerns with respect to the train-
veloped by the Ontario Police College ing they received and the resulting uncer-
as was required by the Regulation. The tainty about how the Regulation applied.
Ministry of Community Safety and Cor- In my view, this uncertainty explains, in
rectional Services (MCSCS) convened an part, why so many officers refrain from
expert roundtable to provide input into proactive police–civilian interactions
the curriculum. post-Regulation. By this observation,
I am not in any way blaming the police
 Chapter 9 • Training of Police and Public Education 159

trainers who worked extremely hard and the e-learning component featured the
diligently to prepare for and deliver the following five modules:
training within the stipulated deadlines
Module 1 – Introduction
for the implementation of the Regulation.
Module 2 – Professionalism in Poli-
14. The Regulation required that all cing
training be completed by January 1, 2017,
Module 3 – Constructive Public
before an officer could engage in a regu-
Interaction
lated interaction. The Ontario Police Col-
lege was under significant pressure to pre- Module 4 – Collecting Identifying
pare the training materials and complete Information
the training on time. The process was Module 5 – Investigative and Psycho-
delayed because the Ontario Police Col- logical Detention
lege was awaiting input from the expert
roundtable. The experts met in May 2016 19. The e-learning component included a
and subsequently reported to the Ontario final assessment consisting of 40 random
Police College on what to include in the questions. An 80% grade was required to
curriculum. The College effectively had pass the assessment.
three months to develop the curriculum. 20. The classroom component included
15. The expert panel also felt rushed. group discussions and activities, as well as
Some members commented that they some scenario training. Instructors were
would have liked greater independence responsible for assessing each participant
from the MCSCS in devising the proper and were required to indicate whether
scope of the training. their performance was satisfactory for
each module. I was informed that there
16. Given the time pressures, the training was not much of an accountability piece
was designed and developed with very for the classroom training.
little input from practising criminal law-
yers. The Ontario Police College acknow- 21. The rushed delivery of the training
ledged that it would have benefitted from was also problematic. For example, officers
this input. were supposed to complete the e-learn-
ing component before the classroom
17. The training curriculum ultimately component. The intent of the e-learning
devised by the Ontario Police College component was to introduce the officers
consisted of two mandatory components: to the subject matter, which would then
(1) an e-learning component; and (2) a be enhanced through the subsequent in-
classroom component. The e-learning class sessions. Unfortunately, most police
component was designed by the Canadian services were not able to follow this pre-
Police Knowledge Network (CPKN). ferred order because of the time pressures.
This rendered the overall training less ef-
18. Both the classroom component and
160 The Independent Street Checks Review

fective. cers to follow has little value – and will

not achieve the intended goal – if officers
22. In addition, a number of the police are not effectively and adequately trained
procedures were only finalized after the on the reasons why the changes were ne-
training sessions had been completed. cessary.
Unless their police service later provided
additional training to address that gap, 27. For police officers to properly under-
police officers did not receive full training stand the Regulation, the training should
on their service’s procedures, including include the issues of unconscious bias and
how to fill out the receipt and other forms systemic discrimination as well as cultural
required as a result of the Regulation. competency and awareness.

23. I have reviewed the curriculum and 28. Officers at all levels of a police service
training materials. Despite the challen- should learn how the widespread use of
ges, I am of the view that the content carding by some services and some officers
complies with the requirements of sec- has been abused in the past – not only in
tion 11 of the Regulation. However, there Canada but around the world. To high-
are areas where the training could be im- light the relevance to the officers being
proved, which I will now address. trained, the examples used should be as
current and as local as possible. Training
The Reason for the Regulation should also highlight the perspectives of
24. The training focused on the “who”, those who have been subject to the prac-
“what”, “when” and “how” of the Regula- tice, and the negative effect it can have on
tion, but not so much on the “why”. As community trust and cooperation.
a result, the training often failed to get
strong buy-in from police officers – par- The Legal Basis for Police Stops
ticularly those who viewed the Regula- 29. Many police officers commented that
tion as being a result of a Toronto-area the Regulation was confusing and the
practice. training on the specifics of the Regula-
tion was unclear. This confusion and lack
25. The Regulation was the subject of of clarity led many officers to completely
negative misconceptions and, from the disengage from interacting with members
perspective of rank and file officers, it of the public.
was contentious. Some believed that the
Regulation would negatively impact offi- 30. Based on my review of the materi-
cer safety and prevent officers from inter- als and the feedback received from both
acting with the public. trainers and participants, it appears not
enough time was spent on the Regula-
26. For regulatory changes to be effective, tion itself to ensure that it was fully and
it is critical to get police officers’ support. properly understood by the officers. Of
Implementing new rules for police offi-
 Chapter 9 • Training of Police and Public Education 161

the five training modules, only Module 4 had a hunch will not suffice. Proper ob-
addressed the actual content of the Regu- jective and credible reasons must exist.
lation and the changes being brought to Once an officer learns how to adequately
bear on police and public interactions. articulate those reasons, the chance of a
complaint will be reduced and – if there
is a complaint – the reasons for the inter-
The training focused on the action will be known and defensible. Po-
“who”, “what”, “when” and lice officers also should know that, in the
face of any public complaint, they will re-
“how” of the Regulation, but
ceive the full support of their police ser-
not so much on the “why”. vice if they have proper, objectively cred-
ible reasons for a regulated interaction.

31. The success of the training and its 34. Given the infinite variety of situa-
proper implementation requires that offi- tions in which police officers and individ-
cers have sufficient time to work through uals interact – as well as the fact that the
the Regulation until it is fully understood. courts have recognized the need to care-
After the training, there appeared to be fully balance competing interests in these
serious misunderstanding and confusion circumstances – it is impossible to estab-
about the changes and their practical ap- lish bright-line rules that can be readily
plication. applied in any given situation. The proper
scope of police powers has consistently
32. The confusion is understandable. been driven by fact-specific concerns, and
The Regulation is complex. So too is the it would be problematic for it not to be so.
broader framework of police powers and
authorities within which regulated inter- 35. Integrating a legal component into
actions are situated. The legal line between the training is important. This compon-
a justifiable police stop and an improper ent would especially serve to reinforce
police stop is often hard to determine. both police legal authorities as well as po-
Furthermore, the legal line between an lice officers’ need to be cognizant of indi-
investigative detention and a justifiable vidual rights.
regulated interaction can be difficult to
36. Through a number of meetings with
determine. These nuances underscore
both frontline and more senior officers, it
how important quality training is in this
became apparent to me that many police
context.
officers are not confident in their know-
33. The articulable cause requirement of ledge and understanding of the lawful
the Regulation merits special attention. authorities granted to them or the proper
Police officers must understand how to scope of their police powers.
properly explain the reason for the regu-
37. Given this knowledge gap, I am of
lated interaction. Simply saying that they
162 The Independent Street Checks Review

the view that the training should focus interactions with members of the public,
more on the legal–contextual framework specifically:
surrounding police powers generally.
• Processing the Offender (arrest, provin-
A failure to understand what regulated
cial offences and release)
interactions mean in the context of other
police powers, duties and responsibil- • Search of Persons
ities is an obvious hindrance to a prop- • Stopping and Investigating Motor Ve-
er understanding of the purpose of the hicles
Regulation.
• Racial Profiling and Bias-Free Policing
38. While section 11 of the Regulation • Investigative Detention
alludes to some of the rights and pow-
41. The Hamilton Police Service also
ers engaged by regulated interactions,
puts great emphasis on the importance
it did not specifically mandate that the
of officers articulating their grounds or
new framework be placed in the broader
lawful authority to act. That police service
context of police powers and lawful au-
wanted officers to have a better grasp of
thorities. Module 5 of the current train-
their lawful authority to interact with in-
ing program addresses investigative and
dividuals across the board. It also wanted
psychological detentions, but officers also
officers to be more aware of their basis
need to better understand whether and
for stopping someone and asking them
how the Regulation applies in the context
to identify themselves, and for applying
of the exercise of other statutory author-
other lawful authorities outside of the
ities. For example, there was some con-
Regulation.
fusion about how regulated interactions
intersect with powers that are afforded to 42. The training materials should strive to
the police under the Highway Traffic Act better explain the operation of the Regu-
and the Trespass to Property Act. lation and the legal bases for police stops.
39. To help officers distinguish regulated
Supervisors and Verifiers
interactions from other forms of police–
citizen interactions and situate the for- 43. The Regulation requires that front-
mer in relation to the latter, some police line police officers engaging in street
services made a key addition to the train- checks and the chief of police’s designate
ing. They integrated a module on police be trained on the Regulation; however, it
powers and lawful authorities within the does not require training for anyone else.
training session. 44. As a result, there was no specific train-
40. To use the York Regional Police Ser- ing for police chiefs and deputy chiefs
vice as an example, that police service of police on the reporting requirements,
requires officers to complete additional the retention of data and the oversight
training on related procedures governing responsibilities related to the Regulation.
 Chapter 9 • Training of Police and Public Education 163

Nor was there any training available for supervision. A person providing super-
the police services boards to help them vision should be expected to have know-
understand the Regulation, their role in ledge that is at least as good as and pref-
developing policies and their associated erably better than those who are being
governance and oversight functions. supervised. 296

48. As it stands, some police services have

indicated that middle management offi-
The training materials should cers are not supportive of the Regulation.
strive to better explain the oper- Their attitudes can trickle down to front-
ation of the Regulation and the line officers. While certain police services
legal bases for police stops. and some police leadership support the
Regulation, getting middle management
buy-in has clearly been a significant issue
45. Many police services have appointed – one that has resulted in less effective
“verifiers” who review the regulated in- implementation of the Regulation.
formation collected by police officers to
verify that the identifying information 49. Training must also be provided to
was collected properly. Not all verifiers supervising officers so that they can better
received the same training as the police understand and support the Regulation,
officers or, in some cases, any training and to verifiers to ensure that information
at all. Those who verify the information is being collected properly.
should have a thorough understanding of
the Regulation.
The Selection of Supervisors and
Trainers
46. While some senior managers partici- 50. Sergeants are the ones who have dir-
pated in the general training, the Regula- ect and ongoing contact with officers on
tion did not require senior management the ground. I am told that they are the
training on the Regulation generally or hardest to reach with the training, infor-
even on those aspects of the Regulation mation and culture shift required to im-
for which they are accountable. plement the new Regulation. The only
47. The fact that training focused solely way to shift policing culture is through
on frontline officers was a gap identified robust hiring practices, ongoing training
by police services. Frontline officers are and reinforcement from management. I
required to have the necessary training addressed some of these issues in my ear-
because they are the ones who attempt to lier Report of the Independent Police Over-
collect identifying information. However, sight Review.
the people who supervise those frontline 51. The Hamilton Police Service has ad-
officers should also have the training so dressed “change management” with its
they can provide proper and informed
164 The Independent Street Checks Review

officers by explaining how police servi- vincing and supportive manner. To be a

ces have typically overreacted to change certified trainer, an individual had to have
in the past and how bias can transfer taken a facilitating adult education course
from senior officers to newer officers. The through the Ontario Police College. The
Hamilton Police Service encourages sen- master training portion of the training
ior officers to be careful about engaging in also incorporated a discussion about how
stereotypes or promoting biases that may to train members.
influence newer officers by, for example,
56. I was informed that many of the mas-
transferring negative attitudes about cer-
ter trainers and frontline trainers selected
tain neighbourhoods.
possessed the right qualifications. Instead
of relying on the usual trainers from the
The only way to shift policing police service’s training section, some
culture is through robust hiring services brought in criminal intelligence
practices, ongoing training and investigators and senior counsel. This ap-
proach appeared to help build credibility
reinforcement from manage-
and render the training more effective. In
ment. those instances, the police officers seem to
have been more receptive to the training.
52. When appointing middle manage-
ment officers, police services should en-
sure that the candidates selected are open Recommendation 9.1
to change and will not undermine the
operation of the service or the policy dir- The training should be provid-
ections of police leadership. ed to those who supervise the
police officers who attempt to
53. The sensitivity of the training subject
collect identifying information
matter means that the way it is delivered
as well as to those who verify
is extremely important. On this point, I
the submitted regulated inter-
think it worthwhile to comment on the
actions and the collected iden-
importance of choosing the right trainers.
tifying information for compli-
54. For training to be effective, the train- ance with the Regulation.
ers must be carefully selected for their
leadership qualities, experience, positivity
and, most importantly, their credibility
with frontline officers.

55. The Ontario Police College encour-

aged police services to select officers
who could deliver the material in a con-
 Chapter 9 • Training of Police and Public Education 165

training materials assuming that police

Recommendation 9.2 officers are discriminatory are not evident
in the current online program. However,
Police services should ensure the program does acknowledge the exist-
that supervising officers sup- ence of implicit bias and how to try to
port the operation of not only avoid such bias.
the Regulation, but also the dir-
ection of police leadership. 59. Implicit bias is sometimes referred to
as unconscious bias, hidden bias, uninten-
tional bias or implicit social cognition.

Recommendation 9.3 60. Many studies have shown that the

general population holds stereotypes.
Most people may have an implicit bias
Police services should select against others of which they are un-
trainers who are supportive of aware.297 The Supreme Court of Canada
the Regulation, and who are has recognized that a “significant seg-
seen by police officers to be ment of our community holds overtly
credible. racist views. A much larger segment sub-
consciously operates on the basis of nega-
Anti-bias and Implicit Bias Training tive racial stereotypes”. 298
57. Training on the Regulation provided 61. Police officers are a reflection of the
to police officers has not been consistent society in which they live. We are all
among police services. Some police ser- products of our environments and subject
vices report that the training provided to collective and individual biases, wheth-
was excellent. Many other police officers er they are consciously or unconsciously
and officials were concerned that some held. Our conscious biases are much eas-
of the training appeared to start from ier for us to deal with because we can be
an assumption that all police officers are made aware of what those biases are. Un-
racists, and then move to the best ways conscious biases are much more difficult
to eliminate or control that racism. If the to deal with because individuals may not
training program was premised on such a know they hold the biases and, therefore,
belief, it was wrong. cannot deal with them until they become
aware of them.
58. The Ontario Police College Virtual
Academy now has a program that covers 62. Although people may hold an un-
not only the operation of the Regulation conscious bias, it does not mean that they
but also how a police officer should con- identify with or agree with the bias or
duct regulated interactions in a profes- that they should be defined by that un-
sional manner. Any concerns about the conscious bias. In fact, consciously, their
166 The Independent Street Checks Review

principles might be diametrically op- tions concerning persons of colour.

posed to the unconscious bias they hold. Finally, and perhaps most pervasively,
As is the case with any large group of racism exists within the interstices of
people, some police officers are also likely our institutions. This systemic racism
to be affected by unconscious, stereotyp- is a product of individual attitudes and
ically held views of people who may be beliefs concerning Blacks and it fosters
ethnically, racially or culturally different and legitimizes those assumptions and
from themselves. These unconscious bias- stereotypes.299
es can exist despite police service efforts
66. As a result, random and arbitrary
to cull individuals who hold such views
carding that has a disproportionate im-
during the recruitment and hiring pro-
pact on Indigenous, Black and other
cess. Even the most open-minded police
racialized communities may be indicative
officers may harbour an unconscious bias
of a larger systemic problem.300
of which they are unaware.
67. Most people have an unconscious or
63. It is also quite likely that the people
implicit bias in one or more areas. Im-
who police officers stop and ask for iden-
plicit bias is the most difficult area to
tifying information hold some conscious
address because it occurs subconsciously.
or unconscious biases of their own.
The profession of policing requires quick
64. It would be unfair to single out po- decisions. Discretionary decisions, such
lice officers for attention when it comes as determining whether an individual
to unconscious bias without also noting or their behaviour seems suspicious, are
that the problem exists throughout the often split-second decisions made sub-
criminal justice system and society at consciously. Those quick decisions are the
large. The issue of unconscious bias must ones most likely to be affected by implicit
be recognized as a systemic issue and ad- bias, which is a concern when individuals
dressed not only by police officers, but are asked to provide identifying informa-
also by the media, prosecutors, judges and tion based on a legal requirement that is
all actors within the criminal justice sys- slightly more than mere suspicion but less
tem and society. than reasonable suspicion.

65. As noted by the Court of Appeal for 68. Unconscious motivations can affect
Ontario: important decisions in unexpected ways.
For example, studies have shown that
[R]acism is manifested in three ways. police officers lower the speed on traffic
There are those who expressly espouse tickets when the officer shares the same
racist views as part of a personal credo. first name as the person being ticketed,
There are others who subconsciously judges issue shorter sentences when de-
hold negative attitudes towards Black fendants are sentenced on their birthdays
persons based on stereotypical assump- and the chance a refugee applicant may
 Chapter 9 • Training of Police and Public Education 167

be granted asylum can be affected if the Police and Community Involvement

prior applicant was granted asylum or in Training
even if it is simply hot outside.301
72. Police stakeholders were also con-
69. As a result, anti-bias training should cerned that the training scenarios provid-
include the recognition of implicit bias. ed were not necessarily realistic and often
Such training is already being provided involved a situation where a police officer
to some police services in Ontario.302 In held discriminatory views. They felt that
recognition of the fact that there is no involving experienced frontline police of-
such thing as bias-free policing, the York ficers could help develop and deliver more
Regional Police Service has reoriented the realistic training in terms of the types of
“bias-free” training of the Ontario Police situations a police officer can expect to
College to a “bias-aware” approach. No encounter.
one can be completely bias-free; however,
people can take steps to try to recognize
their own biases, and not act on them. Implicit bias training can help
ensure that the reason why
70. Finally, the anti-bias training should
people are stopped is objectively
not only be provided to frontline officers.
Police services as a whole should develop and credibly reasonable.
a culture that promotes an atmosphere
of equality and respect, perhaps through
developing and maintaining mentoring 73. Similarly, it is important for the
programs in the communities they serve. training to also consider the perspectives
of those who are stopped and asked to
71. It is important to place the implicit provide identifying information. Their
bias training within the context of the perceptions and feelings are import-
Regulation and, in particular, the require- ant considerations when officers decide
ment for articulable cause. Police officers whether to conduct a stop and how to re-
should focus on being able to express quest information. This type of training is
the reason why they are stopping people useful not just for regulated interactions,
and asking them to provide identifying but for any interactions in which a police
information. Is the reason rational and officer stops and questions an individual.
logical, or is it emotional? Implicit bias Members of racialized communities and
training can help ensure that the reason Indigenous peoples should be involved
why people are stopped is objectively and in developing the training materials and,
credibly reasonable. where possible, in delivering the live
training scenarios.
168 The Independent Street Checks Review

Adolescent Development 80. This idea was recognized by the To-

74. Some limited training on adolescent ronto Police Services Board in its policy,
development could be part of the training which requires that the police chief en-
program. A child might not respond to sure “that police officers who are re-
police questioning in the same way as an assigned or temporarily assigned to a new
adult. If an officer interacts with a child, neighbourhood or Division communicate
particularly if there is no parent or guard- and cooperate with community-based li-
ian present, it is preferable for the officer aison officers and receive any other sup-
to have some understanding as to what port, training and resources necessary to
the child’s potential responses might be. familiarize themselves with the new as-
signment and community”.303
75. For example, a child might run away
from an encounter or act up during an Non-regulated Interactions
encounter. This behaviour might reflect 81. As was noted earlier, police officers
their stage of development as opposed to can still rely on other Acts to obtain iden-
being a reflection on the police officer or tifying information, such as the Highway
the questions being asked. Traffic Act, the Liquor Licence Act, or the
Trespass to Property Act. If the person is
Local Training legally required to provide their identi-
76. In addition to the general training, of- fying information under those statutes,
ficers should receive some specific train- the Regulation does not apply. However,
ing related to the geographic area(s) they the concerns regarding arbitrary or dis-
patrol. criminatory requests for identifying in-
formation remain.
77. Many master trainers across the prov-
ince felt that the subject matter of the
Real-world Scenarios
training was not adapted to the realities
of their region. 82. Some topics included in the training
videos are difficult to address in that for-
78. Several police services are to be com- mat and would be more effectively ad-
mended for the initiatives they took to dressed through in-person, stand-alone
supplement the training curriculum and training sessions. These topics include ra-
adapt it to the reality of their own region. cial and unconscious bias, discrimination,
critical thinking, self-mastery and civility,
79. All training should include the cul-
and personal triggers.
tural makeup of the area and local com-
munity concerns so officers are better able 83. To achieve a stronger level of com-
to understand and address any local issues fort surrounding the regulatory changes,
when interacting with the public. it is important for the training to spend
a substantial amount of time applying
 Chapter 9 • Training of Police and Public Education 169

the Regulation to a number of real-world situations officers may find themselves in

scenarios and provide numerous practical and prepare them for the split-second de-
examples of its application and non-ap- cisions they may be tasked with making.
plication.
87. Similarly, real-world scenario training
84. Police officers commented that they should be incorporated into training on
would have benefitted from more scen- regulated interactions and investigative
arios to properly understand when the detentions. A series of scenarios where
Regulation applies and how to imple- police officers are required to articulate,
ment it. They also felt that the scenarios both orally and in writing, why they en-
provided involved very basic and scripted gaged in a particular course of action
responses, which were overly formal and would allow for a better understanding
unrealistic. of the Regulation and greater ability to
implement that understanding in the real
85. Real-world scenarios allow the pre- world.
senter to ensure participants are engaging
with the material and do not feel at- Refresher Training
tacked in their beliefs. More importantly,
it is helpful to have conversations about 88. The Regulation requires officers en-
difficult topics that encourage individual gaging in regulated interactions to have
reflection and group discussion as ways completed training in the last 36 months,
to address any problematic assumptions which means that retraining has to occur
head-on and determine ways forward. every three years.

89. The online program and in-class

Real-world scenario training training is helpful but this information
may fade from a police officer’s memory
should be incorporated into
over time. Therefore, there should be per-
training on regulated inter- iodic refresher training. Preferably there
actions and investigative deten- should be some ongoing live training
tions. as opposed to simply continuing online
training.
86. It is my understanding that, in an- 90. Communities evolve over time and
nual police training as well as new-recruit the cultural makeup of a community can
training, police officers are routinely faced change. New case law can develop rel-
with a variety of real-world scenarios, such evant to the issues related to street checks.
as an active attacker, dealing with persons Periodic training can help officers keep
in mental health crisis, persons with con- up with the law as well as their under-
cealed weapons and a shooting in prog- standing of the communities they serve.
ress. These types of real-world scenarios
are designed to mimic the demanding 91. Individual police services have plans
170 The Independent Street Checks Review

in place to deliver training on an ongoing 95. Regular refresher training on the

basis. In Hamilton, for example, some topic would be an effective way to address
aspects of the Regulation have been in- some of the shortcomings of the current
corporated into the service’s regular block training. Police services already use this
training. This approach is important for staggered approach to training which al-
officers who were on leave or otherwise lows officers to have practical experience
unavailable during the training period as on the job and receive the pertinent train-
well as for officers who transfer to On- ing at the right time in their careers.
tario from other jurisdictions.
96. Another option is to provide training
92. While the Ontario Police College on the Regulation during annual training
has incorporated the training required for all officers, sometimes referred to as
under the Regulation into the training for block training, recertification training,
new recruits, it has not made provisions or reclassification training. In some ser-
to ensure ongoing training of the train- vices, reclassification training is where
ers at the Ontario Police College level. constables in the early years of their ca-
The availability of Ontario Police Col- reer come back every year for a specified
lege-certified trainers was only assured period to receive training on fundamen-
until December 2017. In my view, the tal issues in policing. This approach is
Ontario Police College needs to have the effective because constables come back
capacity to continue to deliver the train- year after year with practical experience
ing to trainers as required and to continue gained on the job that they can apply to
improving it. the topics, issues and legal questions. The
ability to bring their practical experience
93. Officers – in particular senior com- to the lessons being delivered makes the
mand officers – have identified a need ongoing training more significant and ef-
for more training on the Regulation, in fective.
light of some early errors in its applica-
tion. It was made clear to me that regular,
ongoing training would be the preferred Regular refresher training on
course. Some commented that it may be the topic would be an effect-
better to provide 15 minutes of refresher ive way to address some of the
training every month or two rather than
shortcomings of the current
four hours every three years.
training.
94. While all police officers should be
trained, given the limited resources avail- 97. Some police services have already
able for training, it might also make sense adopted the approach of integrating
to require more frequent refresher train- training on the Regulation into their re-
ing for officers based on their unit rather classification training. In York Region,
than additional training for all officers.
 Chapter 9 • Training of Police and Public Education 171

for example, training on regulated inter- interactions should build on what has
actions forms part of the reclassification already been taught, rather than simply
training delivered to constables in the repeating the same lessons already deliv-
first four to five years of their careers. ered.

98. The Toronto Police Service has decid- Funding for Training
ed to include training on the Regulation
every year as part of the annual recertifi- 102. Both the Ontario Police College
cation training. and police services face increasing pres-
sure to train officers in a variety of areas.
99. From my perspective, training needs Yet they are generally not afforded the
to be reinforced to be effective. There resources and time to deliver all of this
should be more refresher training gener- training. The lack of resources is particu-
ally on topics such as arrests, search and larly problematic for smaller police servi-
seizure, lawful authorities and commun- ces with limited budgets. As a result, un-
ity interactions. Police training in general less training is mandated by legislation, it
must happen on a regular, periodic basis. may well end up not being delivered.
Rather than embark on a new and expen-
sive training program to familiarize po- 103. I recognize that there is a resour-
lice officers with any recommendations cing issue for many police services when
accepted from this report, I recommend it comes to providing additional training.
integrating those changes into annual or 104. It is, therefore, critical for the
refresher training. MCSCS to fund the ongoing training
100. Throughout my consultations related to the Regulation for all police
with various police services, it became services in Ontario, either by providing
apparent to me that police officers often a cadre of trainers that travel from ser-
seek and are granted employment with vice to service to deliver the training or
other police services throughout the prov- by providing funding to each service to
ince. Given the disparity in training and pay for the expenses (including staff and
the differing communities served, I sug- time) associated with developing and de-
gest that all police officers who transfer livering the refresher training.
from one service to another be required to
undergo training specific to the needs of
the new communities in which they will
be working.

101. Whether as part of annual train-

ing, reclassification training, or the
triennial retraining mandated by the
Regulation, future training on regulated
172 The Independent Street Checks Review

Recommendation 9.4 (h) Promoting public trust and

public confidence by recogniz-
The training should be stan- ing the social cost of some his-
dardized and include the fol- toric police practices;
lowing topics: (i) Indicating how the use of
(a) The reason for the Regula- respectful language, tone and
tion and the legal framework demeanour during regulated
under which requests for infor- interactions benefits the com-
mation may be made, includ- munity, individuals, officers
ing the meaning of articulable and police services;
cause, reasonable suspicion (j) Strategic disengagement
and investigative detention; and conflict de-escalation
(b) How to take proper notes of techniques, as well as de-per-
the reasons for the interaction; sonalization techniques par-
(c) Rights of individuals under ticularly when an individual is
the Canadian Charter of Rights disrespectful during a regulat-
and Freedoms and the Ontario ed interaction;
Human Rights Code; (k) Training on the specific
(d) The initiation of interactions communities being served and
with members of the public; their particular issues;

(e) The right of an individual (l) Adolescent development

not to provide information to as it may relate to a regulated
a police officer, the limitations interaction and the specific re-
on this right and how to ensure quirements and limitations re-
that this right is respected; lated to collecting identifying
information from children;
(f) The right of an individual to
discontinue an interaction with (m) The impact of technol-
a police officer, the limitations ogy such as mobile phones and
on this right and how to avoid body-worn cameras;
unlawfully psychologically de- (n) The rights that individuals
taining an individual; have to access information
(g) Bias awareness, including about themselves that is in the
recognizing and avoiding im- custody or under the control of
plicit bias, as well as how to a police service; and
avoid bias and discrimination; (o) The Regulation and its appli-
cation.
 Chapter 9 • Training of Police and Public Education 173

Recommendation 9.5 Recommendation 9.9

The training should consist

of more than video presenta- The training should involve
tions. The training should in- testing.
clude realistic real-world scen-
arios and role playing.

Recommendation 9.6 Recommendation 9.10

The training should be pre-

The training should have a spe-
pared and delivered with the
cial focus on the ability to ar-
assistance of members of po-
ticulate the reasons for a regu-
lice services who understand
lated interaction.
the challenges of regulated
interactions and the realistic
scenarios police officers might
encounter.
Recommendation 9.11
Recommendation 9.7
There should be annual re-
The training should be pre- fresher training on the Regula-
pared and delivered with the tion for all police officers.
assistance of racialized groups
and Indigenous peoples who
understand the effect of regu-
lated interactions.
Recommendation 9.12

Recommendation 9.8 When a police officer transfers

from one police service to an-
Anti-bias training should be other, they should be required
provided to all police officers to receive training about the
and not just those who are specific communities being
most likely to be involved in a served and their particular
regulated interaction. issues.
174 The Independent Street Checks Review

Education of Police Officers lice College program, even with the addi-
105. In my 2017 Report of the In- tional 12 weeks of training as required by
dependent Police Oversight Review, I rec- some police services.306
ommended working with educational 110. The training that is currently pro-
partners to develop a curriculum for a vided to police cadets generally focuses on
post-secondary, professional degree in the physical side of policing, such as the
policing that incorporates multidisciplin- use of force, shooting, the use of a baton
ary education in areas including social and so on. While providing training to
and cultural competency, mental health, police officers on the physical aspects of
domestic abuse, serving vulnerable com- the job is necessary (given that police of-
munities, and anti-bias and equity stud- ficers are empowered to use lethal force)
ies. I also urged the development and de- this training should not come at the ex-
livery of social and cultural competency pense of other required skills.
programs for police officers in partner-
ship with post-secondary institutions. 111. The Ontario Police College
spends less time training officers in other
106. In the same report, I recommended important skills, such as community re-
establishing a College of Policing.304 To lations and completing important docu-
effect organizational change, training mentation and paperwork.
needs to be centralized and consistent.
The core values of one police service may 112. The majority of police work in-
be weighted differently from that of an- volves dealing with issues of social dis-
other police service. A standardized set order rather than responding to actual
of norms and expectations developed by crimes. Yet only two hours of Ontario Po-
a College of Policing – based on research lice College training is spent on commun-
and shared knowledge – would place all ity policing and two hours on interactive
police services on the same playing field. policing. In other words, as recounted by
several police stakeholders, 90% of police
107. I adopt those comments and rec- training is for what police officers do only
ommendations again in this report. 10% of the time. Given that many issues
108. Many scholars have pointed to of social disorder result from people who
the need for post-secondary education to are suffering from mental health challen-
develop the relevant skills to be an effect- ges, police training should include a com-
ive police officer. Some studies indicate ponent of mental health response.
post-secondary education can reduce the 113. Police training should not foster
likelihood of police misconduct.305 an “us and them” attitude but rather high-
109. It is virtually impossible to train light the importance of police–commun-
police officers on everything that they ity partnerships. Police recruiting and
need to know in the 12-week Ontario Po- training practices can be geared toward
 Chapter 9 • Training of Police and Public Education 175

creating a police culture in which there is 117. Police services should also seek
excessive loyalty to police services at the to hire police officers who possess a wide
expense of liberal, democratic principles. variety of work or educational experi-
307
ence and have a real desire and interest
to learn. While university training is no
114. Many public stakeholders noted guarantee of competence, police services
that while they generally support police– should seek police officers who have some
public interactions, they recounted being post-secondary training. Many police
treated rudely by police officers. services are already doing so. Such train-
ing may help identify those who have the
Police training should not foster ability and inclination to do investigative
an “us and them” attitude but work. Post-secondary education may also
expose people to a wider spectrum of so-
rather highlight the importance ciety and allow for greater social and emo-
of police–community partner- tional development before officers enter
ships. into the life-long profession of policing.

118. Policing should be treated as the

115. For example, a police officer ques- extremely demanding profession it is.
tions a person suspected of an offence. The Professionals should be completely and
officer reasonably suspects that the per- properly trained before they start their
son is carrying stolen property. Because work, and not learn the majority of their
it is an investigation, the Regulation does functions on the job. An expanded edu-
not apply. After a quick investigation, the cational requirement would equip police
police officer determines that the person officers with both the hard and soft skills
being questioned is not the one who stole they will need each day to do their jobs.
the property.

116. At that point, even though the

interaction was justified, good public rela-
Recommendation 9.13
tions would dictate that the officer apolo-
gize to the person for the inconvenience
and explain why the investigation was Consideration should be given
necessary. All too often, it appears that to establishing a College of
this is not done. The police officer simply Policing.
leaves without any explanation. The per-
son is left feeling confused and humili-
ated. A better system of education would
reinforce the need and methods for the
police to foster community relations.
176 The Independent Street Checks Review

veloped Codes of Practice that help police

Recommendation 9.14 officers understand – using simple terms
and practical examples – how to apply the
Working with post-secondary law with regard to stops and searches.308
institutions, a task force or ad-
122. Police officers in Ontario should
visory group should be creat-
receive similar guidance on the applica-
ed to evaluate, modernize and
tion and interpretation of the Regulation.
renew police studies and law
A Code of Practice should be developed
enforcement-related course
that explains, in simple and easily under-
offerings across post-second-
stood language, the types of circumstances
ary institutions. Consideration
under which police officers should and
should be given to updating
should not ask people to provide identi-
the Ontario Police College cur-
fying information, as well as the process
riculum, including the creation
under which such encounters should be
of a post-secondary degree in
conducted and documented. The Code of
policing.
Practice should be made available online.

123. Such a Code of Practice would

Code of Practice: Instructions on the provide a readily available tool for police
Implementation of the Regulation officers who need to refresh their memory
119. As outlined in earlier sections of on the operation of the Regulation. The
this report, the Regulation as it is drafted Code of Practice could borrow from the
is somewhat confusing and convoluted to CPKN online training program as well as
read. Throughout my consultations with training materials currently used by the
both police and community members, I Ontario Police College Virtual Training
heard that the Regulation is too compli- Academy.
cated and hard to follow.
124. More specifically, the Code of
120. Some of the services I consulted Practice should include the following
with used visual aids, such as diagrams or areas among others:
infographics that illustrate the spectrum
of interactions between officers and the • Definitions of key terms and concepts
public. These visual aids helped officers regarding the Regulation;
gain a deeper understanding of the Regu- • Information on when or where the
lation and where it fit into their daily Regulation applies (i.e. the Regulation
work. An infographic such as the one applies when a police officer requests
provided in Appendix D could be a useful identifying information in a regulated
learning tool. interaction, whether or not the police
officer retains and records the iden-
121. The United Kingdom has de- tifying information) and when and
 Chapter 9 • Training of Police and Public Education 177

where the Regulation does not apply 126. While police officers received
(e.g. Trespass to Property Act, Agents of training on the Regulation, the public
Landlord); did not. Many stakeholders noted that
• Information on key legal concepts in- the public knows little about the Regu-
cluding reasonable suspicion, reason- lation, the rights and responsibilities of
able and probable grounds, objective an individual who is stopped by police or
and credible reasons, investigative de- the scope of police authorities during the
tention, psychological detention and engagement of their duties.
physical detention;
• Under what circumstances and for what
reasons police officers may inquire into
Many members of the public are
suspicious activities and the legal stan- either unaware of the Regula-
dards associated with different levels of tion’s existence or are confused
encounters; about its operation.
• Protocols and procedures for police of-
ficers in interacting with members of
the public; and 127. This perception was confirmed
by the results of the civilian survey, con-
• Information on the importance of pro- ducted under the Review. Only 45.1% of
fessionalism and civility in police–pub- the respondents indicated that they were
lic interactions. aware of the Regulation, which meant
that over half (54.9%) were unaware of
it. Of the respondents who were aware of
Recommendation 9.15
the Regulation, 58.2% indicated that they
did not know whether the new Regula-
A Code of Practice similar to tion was a good idea or not.
those used in the United King-
dom should be developed to ex- 128. Furthermore, the survey indicates
plain how the Regulation oper- that Indigenous respondents were most
ates and the circumstances likely to be unaware of the Regulation:
under which it is to be applied. only 27.1% of Indigenous respondents
reported that they were aware of it com-
pared to almost 50% of respondents from
other racial groups. This gap is of particu-
Public Education
lar significance because Indigenous re-
125. As I heard in my various consul- spondents were also the most likely to be
tations throughout the province, many stopped by police: 27.4% of Indigenous
members of the public are either unaware respondents reported a police stop, which
of the Regulation’s existence or are con- was more than 30% higher than other
fused about its operation.
178 The Independent Street Checks Review

communities. Black and Middle Eastern cer made by a person who is uninformed
individuals also reported a disproportion- about the content of the Regulation.
ate number of stops. Given the dispropor-
132. There needs to be greater public
tionate number of stops experienced by
awareness of the Regulation, rights and
certain racialized groups, it is insufficient
responsibilities, the civilian complaints
to undertake only general public educa-
process and the reforms that have been
tion on the Regulation. There must also
made with regard to the number of street
be targeted education on the Regulation
checks being conducted.
and its application for Indigenous, Black
and other racialized communities.309 133. The MCSCS should work with
community groups, youth advocacy
129. During my consultations, I heard
groups, legal aid clinics and school boards
that some people believe that police offi-
to develop and launch public education
cers are not allowed to talk to them or to
materials, community training events
ask them any questions regardless of the
and information campaigns to help get
situation – even when the person is legal-
the message on the Regulation out to
ly required to provide identification. This
members of the community. The current
has led to uncomfortable situations where
materials on the Government of Ontario
a person stopped for a traffic violation re-
website, which consist of a website and a
fuses to provide identifying information,
one-page handout, are insufficient to en-
believing that they are not required to
sure meaningful public understanding of
do so. The unfortunate result is that the
the Regulation.
Regulation, which was intended to pro-
mote public confidence, creates the po-
tential for confusion and confrontation. A public that is better informed
130. Some consultation participants at about the Regulation, its specif-
the Review’s public and group meetings ic rules and its operation in
incorrectly believed that police officers practice may result in fewer
are required to give them a receipt docu-
menting every police interaction, whether
contentious interactions and
or not it qualifies as a regulated inter- complaints.
action. That misinformation may exacer-
bate an already tense interaction or lead
134. During my consultations, stake-
to an unnecessary complaint being made
holders also shared that having a full,
against a police officer.
cross-platform advertising and social
131. This confusion makes it difficult media strategy, including videos, info-
for police officers to do their job, particu- graphics, posters and social media con-
larly when a justified interaction may re- tent would greatly assist in educating the
sult in a complaint against the police offi- public about the Regulation and their
 Chapter 9 • Training of Police and Public Education 179

rights more generally. 136. Making the Code of Practice de-

veloped for police officers (described in
135. The Ministry should develop an earlier section), available online, which
and implement an advertising and social explains regulated and non-regulated
media strategy to inform the public about interactions and how these interactions
the Regulation. The CPKN training ma- are properly conducted, would help to
terials would be a good source of infor- educate the public. Anyone who is subject
mation for these materials. The materials to a regulated interaction could easily ac-
created under this advertising and social cess all the information necessary on the
media strategy should be shared with Regulation and its application.
police services and community organiz-
ations across the province for maximum 137. A public that is better informed
reach and impact. about the Regulation, its specific rules
and its operation in practice may result in
Recommendation 9.16
fewer contentious interactions and com-
plaints.

The Province of Ontario should

make efforts to raise public
awareness about the content
of the Regulation, and the Recommendation 9.18
circumstances under which
people are and are not required
The Code of Practice should be
to provide identifying informa-
made publicly available on the
tion to the police. These efforts
internet and in print, in all ac-
should involve collaboration
cessible formats.
with community groups, youth
advocacy groups, legal aid clin-
ics and school boards.

Recommendation 9.17

The MCSCS should launch a

full, cross-platform advertis-
ing and social media campaign
to inform the public about the
Regulation and its operation.
 Chapter 10
Performance Targets, Policies and
Procedures
 Chapter 10 • Performance Targets, Policies and Procedures 183

Introduction ensure that street checks are conducted

1. Prior to the Regulation, police officers appropriately. Without a required quota,
in some services had annual performance police officers are not mandated to stop
targets for the collection of identifying and question people unnecessarily.
information. The Regulation expressly 5. Many police services had already im-
removes those performance targets. In plemented this change prior to the filing
addition, it requires police services boards of the Regulation. The remaining police
to develop policies that give tangible services have now adopted the require-
meaning and definition to the Regula- ment as well.
tion’s requirements and chiefs of police to
develop procedures to implement those Policies and Procedures
policies.
6. Police services boards and the Min-
2. In this chapter, I review the current ister of Community Safety and Correc-
requirements under the Regulation relat- tional Services are required to develop
ed to the police services board policies and policies regarding certain matters in the
the chiefs of police procedures, and make Regulation.311 The policies developed by
recommendations to ensure consistency police services boards and the Minister
and coherence between the policies and must be consistent with the Regulation.312
procedures, and among the various police The duties on the Minister of Commun-
services across the province. ity Safety and Correctional Services apply
in relation to the Ontario Provincial Po-
Restriction on Performance Targets lice.313
3. The Regulation prohibits perform-
ance targets for police officers related to Police Services Board Policies
the collection of identifying information, 7. The current Review looked at the
either with regard to the number of at- policies developed by the police servi-
tempts made to collect information or the ces boards, but not those developed by
number of individuals approached.310 the Minister of Community Safety and
Correctional Services, who acts in place
4. That prohibition is consistent with of a police services board for the Ontario
the change in focus of street checks to in- Provincial Police.
crease the quality rather than the quantity
of information received. This requirement 8. The rationale for requiring each po-
helps ensure that street checks are con- lice services board to develop its own
ducted for a proper purpose and not as a policy in these areas has not been stated. I
result of real or implied quotas and util- recognize that each police services board
ized as a performance measure. The fact is comprised of representatives of the
that a police officer’s performance is not communities in which the police service
based on numbers of street checks helps is located. In theory, each board should
184 The Independent Street Checks Review

be aware of the particular needs, concerns tion collected before January 1, 2017,
and wishes of their individual commun- with respect to which the Regulation
ities and, thus, be better positioned to would have applied had the collection
frame the policies for community inter- taken place on January 1, 2017.314
actions with the police. However, as most
police services boards vary in terms of ex- Different Police Services Board
perience, competence and expertise, there Policies
is a real concern and potential for incon- 10. The policies that police services
sistent policies throughout the province. boards are required to develop are limited
to the specified areas. However, many po-
lice services boards have developed poli-
Without a required quota, police cies that considerably expand on these
officers are not mandated to stop areas and relate to all aspects of regulated
and question people unnecessar- interactions.
ily. 11. For example, the London Police Ser-
vices Board policy goes far beyond what
was required to be developed under sub-
9. Each police services board and the section 12(1) of the Regulation, but the
Minister must develop a policy regarding: increased requirements are well thought
1) The form of the receipt provided to out and are harmonious with the Regu-
individuals; lation.

2) The contents of the chief ’s and 12. These increased requirements include,
Commissioner’s annual report re- among others: an increased rights notifi-
quired under section 14 of the Regu- cation where the individual is informed at
lation; the beginning of the interaction of their
right to walk away and to not respond to
3) The contents of the chief ’s annual questions; and the removal of the option
report regarding the annual review of to request identifying information for
the database; general intelligence gathering.
4) The retention of, access to and 13. The policies that police services boards
disclosure of identifying information are required to develop relate to some im-
collected on or after January 1, 2017, portant areas of the Regulation, includ-
including the retention of informa- ing the contents of the receipt provided
tion collected contrary to the Regu- to the citizen(s) following the regulated
lation; and interaction (which is the only document
an individual receives as a record of and to
5) The retention of, access to and
explain the interaction) and the contents
disclosure of identifying informa-
 Chapter 10 • Performance Targets, Policies and Procedures 185

of the chief ’s annual report as stipulated 18. The Toronto Police Services Board’s
by the Regulation. The policies must also policy also noted that the police service
include the retention of, access to and should not use data obtained in a regu-
disclosure of identifying information col- lated interaction as a basis for classifying
lected before and after the Regulation. a person as being “known to police” and
nor should the data result in an entry on
14. In other words, aside from the pre- an individual’s clearance letter, police ref-
scribed requirements of the Regulation, erence check, vulnerable sector check or
each police services board gets to decide any police record check required by the
how long to retain identifying informa- Police Record Check Reform Act.316
tion, who gets access to it and to whom
the information may be disclosed. Iden-
tifying information that was improper- A police officer who changes em-
ly obtained shall not be retained longer ployment from one jurisdiction
than each police services board considers
to another may be faced with a
reasonably necessary for the limited pur-
poses allowed by the Regulation.315 different policy when applying
the same Regulation.
15. While the Ontario Association of
Chiefs of Police provided a draft model 19. Without such a policy, other jurisdic-
policy to police services boards, each ser- tions could use the information in that
vice adapted that policy, which led to a manner.
certain degree of inconsistency. As a re-
sult, a police officer who changes employ- 20. A further concern is that incorrect in-
ment from one jurisdiction to another formation might be put into the database
may be faced with a different policy when when, for example, a person is stopped
applying the same Regulation. and provides someone else’s name and
address. If the person does not have any
16. For example, the Toronto Police Ser- identification with them to verify their
vices Board in its policy noted that the identity, the incorrect information could
police chief shall establish policies which be recorded and stored. If the person who
“emphasize that both the individual’s was incorrectly identified determines that
right to disengage from a regulated inter- their identity was recorded, there should
action and that an officer’s disengage- be a mechanism to correct the informa-
ment from a regulated interaction is an tion in the database.
acceptable, valued and sometimes neces-
sary policing practice”. 21. Some police services boards have also
developed policies which expressly state
17. That is a commendable policy, but that information should be collected in
might not be one that is shared in the accordance with the Regulation and that
policies developed in other jurisdictions. regulated interactions should not be based
186 The Independent Street Checks Review

on racial profiling or done in an arbitrary

way.317 Those policies also make references Recommendation 10.1
to prohibited grounds or stereotypes re-
lating to prohibited grounds. There should be a minimum,
consistent, province-wide
22. The prohibited grounds are defined as
policy to implement the Regu-
the grounds set out in the Human Rights
lation that is binding on police
Code: race, ancestry, place of origin, col-
services boards, similar to the
our, ethnic origin, citizenship, creed, sex,
policing standards provided for
sexual orientation, gender identity, gender
other policing activities.
expression, age, marital status, family
status and disability. As a result, the poli-
cies attempt to prevent profiling generally.
Recommendation 10.2
23. While such policies expand on the re-
quirements of the Regulation to include
prohibited grounds other than racial If it is determined that the in-
background, they are still too restrictive. formation contained in the
Profiling occurs when any part of the rea- street checks database is in-
son to link a person to an unlawful inci- correct, then that information
dent or incidents and/or relating to public should be restricted and even-
safety concerns is based on a prohibited tually purged.
ground. The Regulation specifically pre-
cludes any part of the reason for a regu-
lated interaction being the individual’s
Recommendation 10.3
racial background, absent the specified
exceptions (e.g. the person’s racial back-
ground was part of a suspect description). The policies should seek to
eliminate regulated inter-
24. The Regulation contemplates some
actions that are based, even in
degree of inconsistency. The mandate
part, on a prohibited ground
of this Review requires me to consider
of discrimination under the
whether the Regulation appropriately
Ontario Human Rights Code,
reflects the government’s goal of ensur-
absent a reason such as is cur-
ing that police–public interactions are
rently allowed by the Regula-
consistent. Allowing each police services
tion for an individual’s racial-
board to develop its own policy in import-
ized background.
ant areas does not achieve consistency.
 Chapter 10 • Performance Targets, Policies and Procedures 187

28. While the Regulation does not have

Recommendation 10.4 any set date to delete improperly ob-
tained data, there are guidelines that the
data should be deleted when retention is
Police services boards may
no longer reasonably necessary.
develop further policies that
expand on the content of the 29. What one police services board con-
Regulation for the purpose of siders a “reasonably necessary” length of
protecting human rights and time to retain improperly collected infor-
preventing discrimination. mation may be quite different from that
of another board. This was discussed in
Form of the Receipt Chapter 8, where I recommended that
there be a set time period for the deletion
25. The Regulation allows for police ser- of all identifying information.
vices boards to develop their own policies
related to the form of receipt that po- Concerns Over the Use of the
lice officers provide to individuals after
Information Collected
a regulated interaction. This allowed for
inconsistency among jurisdictions. The 30. Once people have been stopped and
recommendations made in Chapter 7 ad- their identifying information entered into
dress those problems. a police database – especially a non-re-
stricted database – they are now on the
Historical Data police radar. Many people are concerned
that, after being stopped and documented,
26. The Regulation allows for further in-
they might fall into the “usual suspects”
consistency by allowing police services
or “known to the police” categories and
boards to develop different policies re-
be more likely to be subjected to further
garding identifying information obtained
stops or negatively affected in terms of
before January 1, 2017. The recommen-
their future employment prospects or
dations made in Chapter 8 address those
ability to travel.319
problems.
31. During my consultations, both mem-
Improperly Obtained Data bers of police services as well as members
27. For identifying information im- of the public informed me that, in some
properly obtained after January 1, 2017, cases, information obtained in street
the police services board policy shall re- checks is not necessarily reliable, par-
quire that the information not be retained ticularly if no documentation supporting
longer than is reasonably necessary to en- identity is produced at the time the iden-
sure that the information is available in tifying information is collected. I heard
the circumstances contemplated by sub- about several real cases from a few dif-
section 9(10)(2) of the Regulation.318 ferent police recruitment officers. For ex-
188 The Independent Street Checks Review

ample, a person stopped in a street check Chiefs of Police Procedures

could provide someone else’s name and 33. To implement the policies developed
address to a police officer. That other per- by police services boards, chiefs of police
son’s identity is now contained in a police must develop procedures consistent with
database. Sometimes information is in- the Regulation, namely:
correctly recorded so a person with a sim-
ilar name or date of birth becomes associ- 1) The form of the receipt provided to
ated with a street check report. Unreliably individuals;
obtained information should not be used
2) The contents of the chief ’s and
to determine critical decisions such as a
Commissioner’s annual report re-
person’s career.
quired under section 14 of the Regu-
32. A standard policy should address lation;
such concerns. Many of these concerns
3) The contents of the chief ’s annual
have already been addressed through the
report regarding the annual review of
passage of the Police Record Check Reform
the database;
Act, 2015, and would be a good point of
reference.320 4) The retention of, access to and
disclosure of identifying information
Recommendation 10.5 collected on or after January 1, 2017,
including the retention of informa-
tion collected contrary to the Regu-
No information collected in a lation; and
regulated interaction, including
identifying information 5) The retention of, access to and
obtained prior to January 1, disclosure of identifying informa-
2017, to which this Regulation tion collected before January 1, 2017,
would have applied had the with respect to which the Regulation
information been collected would have applied had the collection
after January 1, 2017, should taken place on January 1, 2017. 321
be used as a basis to classify 34. Again, the Regulation contemplates a
a person as being “known to degree of inconsistency in the procedures
the police” or result in an entry adopted by chiefs of police to implement
on an individual’s clearance the policies developed under section 12 of
letter, police reference check, the Regulation.
vulnerable sector check or any
police record check required 35. Furthermore, section 13 requires
by the Police Record Check that procedures be developed related to
Reform Act. the limited matters set out in subsection
12(1) of the Regulation, such as the form
 Chapter 10 • Performance Targets, Policies and Procedures 189

of the receipt, the contents of annual re- that part of the London Police Services
ports and the retention of data. The pro- Board policy is not one of the areas where
cedures developed by chiefs of police shall a policy was required to be developed
be consistent with the policies that police under the Regulation and, therefore, the
services boards developed under section procedure developed by the chief of po-
12. lice is not required to follow it.

39. What appears to have occurred is that,

Profiling occurs when any part in some jurisdictions, the model proced-
of the reason to link a person to ures and policies developed by the On-
an unlawful incident or inci- tario Association of Chiefs of Police were
adopted by the chief of police and by the
dents and/or relating to public
police services board respectively. In those
safety concerns is based on a cases, there was consistency between the
prohibited ground. policy and the procedure. In some juris-
dictions, the chief of police adopted the
36. As a result, when a police services model procedures but the police services
board adopts policies that go beyond the boards developed policies that went be-
limited areas set out in section 12, the yond the model policy. Given the com-
Regulation does not require the police plexity of the Regulation and the short
chief to develop consistent procedures. time frame to develop the procedures and
policies, it appears that, in some cases, the
37. For example, as was discussed above, procedures were not modified to incor-
the London Police Services Board de- porate the additional requirements of a
veloped a policy that a police officer shall board’s policy.
advise individuals at the beginning of a
regulated interaction of their right not
to interact, including their right to walk Unreliably obtained informa-
away, not provide their identification or tion should not be used to deter-
not respond to questions. mine critical decisions such as a
38. The procedure adopted by the Lon- person’s career.
don Chief of Police was “[B]efore at-
tempting to collect identifying informa- 40. While some chiefs of police have de-
tion from an individual, the officer shall veloped procedures that also go beyond
inform the individual that they are not the limited requirements of section 12,
required to provide identifying infor- under the Regulation those procedures
mation to the officer”. That procedure is have to be consistent with the Board poli-
consistent with the Regulation but is not cies only as they relate to section 12. This
completely consistent with the London can allow for a discrepancy between the
Police Services Board policy. However,
190 The Independent Street Checks Review

way that a police services board wants the

Regulation to be applied and the way that Recommendation 10.7
the Regulation is applied by the chief of
police, at least for those matters not cov- The procedures should seek
ered by subsection 12(1). There should be to eliminate regulated inter-
consistency between the board’s intention actions that are based, even in
and the chief ’s actions, after the board has part, on a prohibited ground of
consulted with the chief of police.322 discrimination under the On-
41. Not all procedures developed by tario Human Rights Code, ab-
chiefs of police need to be consistent, sent a reason that is allowed by
as long as the procedure that is adopted the Regulation.
accomplishes the objectives of the Regu-
lation. For example, chiefs of police may
develop different ways of verifying that Recommendation 10.8
identifying information is collected in ac-
cordance with the Regulation. Not every Chiefs of police may develop
police service is the same. Some larger procedures that expand on the
police services may be able to appoint a content of this Regulation for
person whose sole job function is to ver- the purpose of protecting hu-
ify the collected information, whereas man rights and preventing dis-
smaller police services may designate that crimination.
responsibility as one of several job func-
tions of an employee. As long as there is
compliance with the Regulation, the pro-
Recommendation 10.9
cedures can vary.

The procedures should be bind-

Recommendation 10.6 ing on chiefs of police.

Chiefs of police should review

the procedures they developed
in order to ensure that the pro-
cedures are consistent with the
policies developed by the local
police services boards, includ-
ing any requirements that go
beyond the Regulation.
 Chapter 11
Reports and Compliance
 Chapter 11 • Reports and Compliance 193

Introduction The Annual Reports

1. The Regulation requires that annual 4. Section 14 of the Regulation relates
reports be prepared and reviewed to en- to the annual reports provided by a mu-
sure compliance with the Regulation. nicipal chief of police to a board under
section 31 of Ontario Regulation 3/99
2. In this chapter, I will examine the (Adequacy and Effectiveness of Police
Regulation’s requirements for annual re- Services) made under the Police Services
ports and the contents of these reports. Act,323 and the annual report provided by
I make recommendations related to the the Commissioner under subsection 17
inclusion of the number of complaints (4) of the Police Services Act.324 For the
and requests for information made with purpose of the Review, I am to consider
regard to regulated interactions. Several the annual reports prepared by chiefs of
recommendations strive to ensure that police, although the Commissioner pre-
there is standardization and consistency pares a similar report for the Minister
across the province when it comes to re- of Community Safety and Correctional
porting the age and racialized groups of Services.
individuals from whom identifying in-
formation was collected or attempted to Contents of the Annual Reports
be collected under the Regulation. This
standardization is key to ensure that data 5. Chiefs of police are required to es-
collected and reported across services is tablish age groups and racialized groups
easy to analyze and is comparable from for the purposes of preparing annual re-
service to service. ports.325

3. I also make recommendations re- 6. A chief of police shall ensure that

lated to the term “disproportionate” and their annual report includes the follow-
the determination of whether there were ing information in relation to attempted
disproportionate collections of informa- collections of identifying information:326
tion from certain groups. In subsequent 1) The number of attempted collec-
sections, I explore the role of chiefs of tions and the number of attempted
police in reviewing their annual reports collections in which identifying in-
for compliance and disproportionate im- formation was collected;
pact, and conducting ongoing analysis
for compliance, including making critical 2) The number of individuals from
recommendations in this area. Finally, I whom identifying information was
explore the notion of disciplinary meas- collected;
ures for non-compliance with the Regu-
3) The number of times officers relied
lation, including implications for officers
on sections of the Regulation to not
and chiefs of police.
do something that would otherwise
194 The Independent Street Checks Review

be required under the Regulation pri- attempted collections;

or to requesting identifying informa-
10) The neighbourhoods or areas
tion;
where collections were attempted and
4) The number of times an individual the number of attempted collections
was not given a receipt because the in each neighbourhood or area;
individual indicated that they did not
11) The number of determinations
want it;
found in the 30-day review that the
5) The number of times an officer information was obtained in a way
relied on sections of the Regulation that did not comply with the Regu-
to not offer or provide a receipt; lation;

6) The number of attempted collec- 12) The number of determinations

tions from individuals who are per- found in the random sample con-
ceived by a police officer to be males ducted as part of the annual review
or females; that the information was obtained in
a way that did not comply with the
7) For each age group established by Regulation; and
the chief of police, the number of at-
tempted collections from individuals 13) The number of times members of
who are perceived by a police officer the police service were permitted to
to be within that age group; access restricted information.

8) For each racialized group estab- 7. The recording of racial data allows for
lished by the chief of police, the num- analysis of potential racial bias. This is a
ber of attempted collections from step in the right direction, because the
individuals who are perceived by a prior absence of such data has been iden-
police officer to be within that racial- tified as an issue.327
ized group;
8. As noted earlier in this report, the
9) A statement, based on an analysis annual reports require an analysis of data
of the information provided under that is not explicitly required to be re-
this subsection, as to whether the corded by a police officer at the time of
collections were attempted dispro- the stop. For example, the chief of police
portionately from individuals within is required to annually review factors such
a group based on the sex of the in- as the ages or perceived ethnicity of the
dividual, a particular age or racialized people stopped, but officers are not cur-
group or a combination of groups rently required to record that information.
and, if so, any additional information The recording requirements I recommend
that the chief of police considers rel- in Chapter 7 should address this issue.
evant to explain the disproportionate
 Chapter 11 • Reports and Compliance 195

9. The chief ’s reports received to date mission of annual reports. In my view, it

have ranged from a paragraph in an an- is reasonable for police services to provide
nual report to a 20-page independent re- the required information within the first
port. The reports have different age ranges six months of the following calendar year.
and different racial categories. They also
differ in the way they track and record the Recommendation 11.2
number of compliant and non-compli-
ant requests for identifying information.
Such variations make inter-jurisdictional Annual reports should be made
comparisons difficult. publicly available within the
first six months of the follow-
ing calendar year.
The recording of racial data
allows for analysis of potential
racial bias. This is a step in the Complaints and Requests for
Information
right direction.
12. In addition to the information that
the Regulation requires to be included
10. It would be useful if there was a tem- in the annual report, some police services
plate report for all jurisdictions or instruc- report on the number of complaints and
tions given to services on these issues to requests for information made by mem-
make data comparisons easier and more bers of the public related to regulated
meaningful. interactions. That is useful information to
know.
Recommendation 11.1
13. The complaints might be unjustified
in that they may be about the collection
The MCSCS, in consultation of identifying information related to an
with the Ontario Association of investigation and not a regulated inter-
Chiefs of Police, should develop action.
a template annual report. 14. To better understand the social cost
of regulated interactions, it is preferable
to know the number of complaints made.
Timeliness of Annual Reports Those results can then be compared to
the positive hit rate for the collection of
11. The timeliness of annual reports is a
identifying information to inform a cost/
concern. As of the time of writing, only
benefit analysis of the practice.
13 police services had made their reports
publicly available. Currently, the Regula-
tion does not include a timeline for sub-
196 The Independent Street Checks Review

Recommendation 11.3 Recommendation 11.4

The annual report should list The potential age groups of

the number of complaints and those requested to provide
requests for information relat- identifying information should
ed to regulated interactions. be standardized.

Age Groups
Recommendation 11.5
15. A chief of police shall establish age
groups for the purpose of recording the
number of attempted collections from The age groups should distin-
individuals who are perceived by a police guish between children and
officer to be within that age group.328 adults.

16. Allowing each chief of police to es-

tablish their own age groups leads to in-
consistency. One police chief ’s age groups Recommendation 11.6
could differ from another. Currently some
police services use the age groups 12-17, The recommended age groups
18-29, 30-49, 50+. Most other police ser- are:
vices use 0-19, 20-29. 30-39, 40-49, 50- 0-11
59, 60-69, 70-79, 80+. 12-17
18-29
It would be useful if there was a 30-39
template report for all jurisdic- 40-49
tions. 50-59
60-69
17. As a result, only some jurisdictions
70-79
can determine whether the person who
was stopped is a child. The data should be 80 and over
obtained in a consistent manner that al-
lows for inter-jurisdictional comparison.
It is recommended that the standardized
age groups allow for a determination as
to whether the person stopped is an adult
or child.
 Chapter 11 • Reports and Compliance 197

Racialized Groups
Recommendation 11.8
18. A chief of police shall establish racial-
ized groups for the purpose of record-
ing the number of attempted collections The recommended racial or
from individuals who are perceived by a ethnic groups are:
police officer to be within that racialized • Indigenous including: First
group.329 When establishing the racialized Nations (North American
groups, the groups should be comparable Indian), Inuit, Métis
to the data released by the Government
• White
of Canada related to visible minorities
and Aboriginal peoples. • Black
• Latin American including:
19. There is considerable overlap between
Central American, South
the perceived racial groups set out by the
American, Mexican, Cuban,
various police services. Some police servi-
Puerto Rican, etc.
ces request officers to identify individuals
as “Aboriginal” whereas others break that • East Asian, Southeast
down further to First Nations, Inuit and Asian including: Chinese,
Métis. Some, but not all, police services Japanese, Filipino, Korean,
have a category for mixed race. Southeast Asian, Vietnamese,
Cambodian, Malaysian,
20. Allowing each chief of police to es- Laotian, etc.
tablish their own racialized groups results
• South Asian including: East
in inconsistency. It is recommended that
Indian, Pakistani, Sri Lankan,
standardized racial groups proposed by
etc.
the Ontario Human Rights Commission
and endorsed by a number of stakehold- • Middle Easterner including:
ers, including the Ontario Association of Arab, Iranian, Afghan, etc.
Chiefs of Police and the Ontario Associ- • Other including: Visible
ation of Police Services Boards, be adopt- minorities not included
ed.330 elsewhere and multi-
racialized individuals

Recommendation 11.7
Disproportionate Collection
The potential racial or ethnic 21. The data must be analyzed to deter-
groups of those requested to mine if identifying information is being
provide identifying informa- collected from people “disproportionate-
tion should be standardized. ly”.331 What does that mean? Determin-
ing that answer is not an easy task. As it
198 The Independent Street Checks Review

stands, each police service could have a stops. That is a disproportionate num-
different interpretation of what is “dis- ber. The result is less of a concern when
proportionate”. it factored in the fact that Black people
made up 17% of the people out on the
22. For example, imagine that, in a north- street. So, of the population available for
ern town, Black people make up 1% of street checks, Black people were actually
the population, whereas 10% of Ontario’s checked slightly less than the average.332
population as a whole is Black. In the
northern town, the street checks of Black 26. So what should the collected data be
people made up 10% of the total street compared to? Should it be compared to
checks. Was the collection disproportion- the general population of the area or to
ate? The answer is “yes” if compared to the the people in the area who are available to
population of the northern town, but “no” be stopped?
if compared to Ontario as a whole.
27. The “availability” issue is compli-
23. Now imagine that there are two police cated. Racialized communities tend to be
officers who each collect data from racial younger than the general population, have
groups and age groups in equal percent- lower incomes and be more concentrated
ages. One officer’s collection of data is not in urban areas, all of which can affect the
disproportionate to the other. However population available for a street check.333
both of them could be collecting data dis-
28. A disproportionate number of stops
proportionately from the general popula-
could be affected by other variables that
tion.
affect the availability to be stopped, such
24. Imagine now that the population of as being under 25 years of age, being
a neighbourhood is a 50/50 mixture of male, patterns of socializing, use of public
Black people and white people. However, spaces such as parks, going out regularly
at any time, the people walking around after dark, school exclusion, not owning a
outside are 75% Black. The collected data car and unemployment or part-time em-
from the street checks indicates that 75% ployment.334
of the people who were stopped were
29. Disproportionality in the number
Black. Was the collection disproportion-
of street checks is not necessarily a dir-
ate? The answer is “yes” if compared to the
ect index of police discrimination, but it
local census data, but “no” if compared to
may point to the possibility of discrimin-
the people available to be stopped on the
ation.335
street.
30. The 2018 report prepared for the Ed-
25. Whether data is collected dispro-
monton Police Commission concluded
portionately is a difficult concept. In one
that, while visible minority and Indigen-
study, Black people made up 6% of the
ous persons were street checked more
population but were subject to 15% of the
often than white persons, in the absence
 Chapter 11 • Reports and Compliance 199

of an ability to assess the context with- 33. Police services note that not all com-
in which the street checks occurred, in- munities are the same. Police respond to
cluding the location, circumstances and calls from the public and those calls may
available population, it was not possible be from neighbourhoods that have a lar-
to determine if this was the result of racial ger ethnic population. However, some
profiling and biased policing.336 studies indicate that the calls for service
can explain only some of the level of dis-
parity.340
Each police service could have a 34. Further, the nature of the calls for po-
different interpretation of what lice assistance can affect the proportion
is “disproportionate”. of street checks. For example, if there
are many calls to report assaults where
the suspect is of a particular racial group,
then that demographic will be subject to
31. Two British studies, which looked a greater degree of street checks. Assaults
at the available population where and result in a greater number of cases where
when police stops are conducted, con- the victim can provide a description of the
cluded that people from Black and min- suspect, as opposed to other crimes such
ority ethnic groups are more available in as burglary where the physical appearance
those areas and that such availability goes of the suspect may not be known. As a
a long way to explaining the dispropor- result, these investigations may involve
tionate collection.337 In fact, two studies more street checks than others.
found that white people were more like-
35. There was also evidence from the
ly to be searched relative to the available
United Kingdom that the rate of stops
population.338 However, despite all of this,
that resulted in searches – as opposed
another study indicated that there re-
to simply “stop and account” – of Black
mained a significant disparity in stops on
or ethnic people was double the rate for
the basis of race.339
whites.341 Both types of stops require rea-
32. This still leaves the concern that the sonable suspicion to initiate the inter-
police decide where and when searches action. Once the interaction was initiated,
will be conducted: decisions that could af- some groups were searched more often
fect the available population. When stops than others. The disparity in search rate
and searches are conducted in neighbour- could not be explained away on the basis
hoods with large minority ethnic popula- of availability.
tions, members of those groups are bound
36. Similar results from the United States
to be more available. Discrimination at
indicate that, once stopped, Black and
an individual level is simply replaced by
Hispanic people are more likely than
discrimination at a neighbourhood level.
white people to be frisked or searched.342
200 The Independent Street Checks Review

All of this highlights the need for police 42. To allow for a standardized analysis,
officers to also record whether a regulated it is recommended that the collected data
interaction resulted in further action be- be benchmarked against the local census
ing taken by the police officer. data to determine if there has been a dis-
proportionate collection of information.
37. Despite the issue of how best to de- Such a comparison is a blunt instrument
termine whether there has been a dispro- because there may be several reasons why
portionate collection of data, such analy- there are disproportionate numbers, but
sis is not possible without collecting the it provides easy and inexpensive feedback
data in the first place. Recording that data about potential areas of concern.
is an essential component of the Regula-
tion. 43. The analysis might indicate a dispro-
portionate level of collection that is ex-
38. To determine whether there has been plained by, for example, the fact that the
a disproportionate collection of informa- population available on the street to be
tion, the collected data must be compared questioned is itself disproportionate to
to something else, which is often referred the local census data. That reason could
to as a “benchmark”. then be stated when the chief of police
39. Some jurisdictions such as Victoria, reports on the results of their findings
Australia, recommend that the data be that there was a disproportionate collec-
benchmarked against local census data. tion of identifying information.344

40. In the landmark Floyd v. New York de- 44. The Regulation requires that the an-
cision, the court accepted the benchmark nual report of the chief of police indi-
of available population over the bench- cate the number of regulated interactions
mark of local crime data statistics.343 The within each neighbourhood or area.345
reason was that the local crime statistics The Regulation also requires that a deter-
were caused, in part, by a prior dispropor- mination be made as to whether there has
tionate number of stops and searches that been a disproportionate collection of in-
skewed the crime data against racialized formation in the entire region. The Regu-
groups. lation does not require a determination as
to whether there was a disproportionate
41. Without setting out the benchmark collection of information in each area of
to be used, it is difficult to compare juris- the region. As a result, a disproportion-
dictions. One police service could deter- ate collection of information against one
mine whether there had been a dispro- group might be offset by a dispropor-
portionate collection of information by tionate collection of data against another
benchmarking against the local census group in a different area, and the overall
data, while another police service bench- result would show no disproportionate
marks against the population on the street collection of information.
available to be stopped.
 Chapter 11 • Reports and Compliance 201

45. The York Regional Police Service re- noted earlier, police officers have stopped
ports as to whether there is a dispropor- engaging in street checks almost entire-
tionate collection in each area. For each ly, even when there may be good reasons
district, York Regional Police correlates to conduct a street check. This concern
the percentage of regulated interactions over interpreting low numbers might be
for each racialized group to the census alleviated if the levels of reported street
data for the proportion of that racialized checks increase as a result of the recom-
group in that district. Such a breakdown mendations made in this report.
helps to show if there are any intra-juris-
dictional concerns over the dispropor-
tionate collection of information. Because of the very low num-
bers of regulated interactions re-
46. Because of the very low numbers of
regulated interactions reported by various ported by various police services,
police services, it is difficult to determine it is difficult to determine any
any statistically significant differences in statistically significant differ-
collection. With annual numbers of only ences in collection.
two or three dozen regulated interactions
or fewer across an entire region and with
only a few regulated interactions in each 48. Despite the low numbers of inter-
area of the region out of thousands of actions, leaving the collection and analy-
calls for service, it is difficult to draw any sis of the data solely in the hands of police
conclusions. services does not promote public confi-
dence. The annual report of the chief of
47. For example, in one jurisdiction, of police indicating the annual data on regu-
the thousands of interactions with indi- lated interactions is provided to the police
viduals, 30 white people and five Black services board, not to the public.346 Only
people were questioned in regulated inter- if the chief of police concludes that there
actions in 2017. White people comprised has been a disproportionate collection
83.3% of the community and 75% of the of data is the chief required to prepare a
regulated interactions. Black people com- report addressing the concerns, which is
prised 1.8% of the community and 12.5% provided to the police services board and
of the regulated interactions. It would ap- then made publicly available.347 The pub-
pear that the five Black people who were lic does not necessarily see the data that
questioned were overrepresented. How- leads to the police chief ’s conclusion as
ever, with such small numbers, the results to whether there was or was not a dispro-
are easily skewed. One event might result portionate collection of identifying in-
in two people being asked for informa- formation. The chief of police is required
tion at the same time, or the numbers to make the information available to the
could be influenced by other variables. As
202 The Independent Street Checks Review

Minister of Community Safety and Cor-

rectional Services.348 Recommendation 11.11

49. The data should be publicly available

The number of regulated inter-
to ensure that the conclusion as to wheth-
actions in each neighbourhood
er or not there was a disproportionate col-
or area should also indicate
lection of information was correct. When
the age, race and gender of the
the evidence indicates that there was not
person stopped compared to
a disproportionate collection of identify-
the census data for that area.
ing information, that information should
also be made known to the public. Privacy
concerns prevent the sharing of the actual
identity of the people who are stopped, Recommendation 11.12
but the de-identified data should be made
available to ensure that the Regulation is The collected, de-identified
being adhered to properly. data provided by a chief of po-
lice to a police services board
under section 14 of the Regu-
Recommendation 11.9 lation should be made publicly
available.

The term “disproportionately”

as contained in section 14(2)
(9) of the Regulation should be Review and Report by Chiefs of
defined so as to be applied con- Police
sistently. 50. Chiefs of police must review their an-
nual reports to determine if identifying
information was attempted to be collected
disproportionately from individuals per-
Recommendation 11.10 ceived to be in a group or combination of
groups.349
When determining whether 51. If the review indicates that there has
there was a disproportionate been a disproportionate collection of in-
number of street checks, the formation, the chief of police must review
collected data should be com- the practices of their police service and
pared to the local census data prepare a report setting out the results
to determine if there is a statis- of the review as well as their proposals,
tically significant difference. if any, to address the disproportionate at-
tempted collection of information.350 The
 Chapter 11 • Reports and Compliance 203

chief then provides a copy of that report encounters should be reviewed daily to
to the police services board. ensure they comply with the Regulation.

52. The board must then publish the

chief ’s report on the internet and make The data should be publicly
it available to the public, free of charge, available to ensure that the
in any manner the board considers ap-
propriate.351 The board must consider the
conclusion as to whether or not
report and the recommendations, if any, there was a disproportionate
and decide whether to give directions collection of information was
under subsection 31(1)(e) of the Police correct.
Services Act.352

53. The Regulation does not require the 57. A daily review of the information re-
chief to make any recommendations to ceived provides some level of assurance
solve the issue of disproportionate collec- that police officers are acting properly.
tion of information. As noted earlier, the
disproportionate collection might be af- 58. There should also be some form of
fected by other factors, such as the avail- an early warning indicator to flag poten-
ability of people on the street, which are tial concerns. For example, a police offi-
not matters in need of correction. cer might submit information that con-
sistently shows there are objective and
54. Given the fact that the information credible reasons for conducting stops.
is published and the police services board However, for that particular officer, all of
could intervene, the chief of police will be the stops involve people of one race. Such
under considerable pressure to ensure a a result would require an explanation,
justifiable collection of data. As such, no particularly if other police officers doing
further recommendation is made. the same job in the same area do not have
the same results.
Ongoing Analysis
55. The collected identifying information 59. Flagging concerns at an early stage
should be inspected for compliance more benefits both the public and the police.
than once annually. An officer might innocently misinterpret
the legislation. Before the officer is sanc-
56. As the information is received, it tioned, the issue should be flagged and
should be reviewed daily within the po- addressed. Further training might be re-
lice services to ensure it was properly ob- quired or a warning might be necessary.
tained. This review involves more than
simply ensuring that boxes have been 60. In the event that the officer persists in
checked off. The written reasons that violating the Regulation despite a warn-
police officers are providing for the stop ing or retraining, a system should be put
204 The Independent Street Checks Review

in place to ensure that disciplinary action

is taken. It is not sufficient for the Code Recommendation 11.16
of Conduct to be amended to incorporate
violations of the Regulation if such viola- In appropriate circumstances,
tions do not have consequences. an officer who collects identify-
ing information in breach of the
Regulation should receive addi-
Recommendation 11.13
tional training. If necessary,
the officer should not conduct
The identifying information re- regulated interactions until the
ceived should be monitored as retraining has been completed.
it is received to ensure compli-
ance with the Regulation.
Recommendation 11.17

Recommendation 11.14
An officer who persists in col-
lecting identifying information
in breach of the Regulation
There should be an early indi- without reasonable excuse
cation system to identify, cor- should be subject to discipline.
rect and warn officers who un-
intentionally collect identifying
Disciplinary Charges
information contrary to the
Regulation. 61. The new subsection 2(1)(g)(iii) of the
Code of Conduct states:

2(1) Any chief of police or other po-

Recommendation 11.15 lice officer commits misconduct if he
or she engages in,

If it is determined that identi- (g) Unlawful or Unnecessary Ex-

fying information was uninten- ercise of Authority, in that he or
tionally collected contrary to she,
the Regulation, the officer who
(i.1) without good and sufficient cause
collected the information must
makes an unlawful or unnecessary
be notified as soon as possible
physical or psychological detention,
of the reason why the collec-
tion was found not to have ***
been obtained in compliance
with the Regulation. (iii) collects or attempts to collect
identifying information about an indi-
 Chapter 11 • Reports and Compliance 205

vidual from the individual in the cir- actions. Refusing to provide a name or
cumstances to which Ontario Regula- badge number makes it extremely diffi-
tion 58/16 (Collection of Identifying cult for members of the public to follow
Information in Certain Circumstances up on the interaction.
– Prohibition and Duties) made under
66. In fact, as mentioned above, most po-
the Act applies, other than as permit-
lice services in Ontario do have internal
ted by that regulation. 353
regulations requiring uniform officers to
62. The Regulation allows for identifying produce their identification, including
information that was improperly obtained their badge and warrant card, when re-
to be used for limited purposes such as an quested by a member of the public. These
ongoing police investigation.354 regulations usually also require plain-
clothes officers (except undercover offi-
63. Given that it is police officers and not cers) to produce their identification auto-
the chiefs of police who are most likely to matically when identifying themselves as
be out on the street obtaining the identi- police officers.
fying information, police officers could be
sanctioned for improperly obtaining the
information while chiefs of police would
not be sanctioned for using the improper- Flagging concerns at an early
ly obtained information, as long as the stage benefits both the public
use of that information is allowed under
the Regulation. In other words, chiefs of
and the police.
police are allowed to enjoy the fruit of the
poisonous tree.
67. All police officers who engage with
64. The disciplinary measures should the public, other than those in covert
extend not only to those who actually operations, should be required to wear a
attempt to collect the identifying infor- name tag and to provide their name and
mation other than as permitted but also badge number if requested.
to those who authorize or allow such a
practice, including supervisors or chiefs
of police.

65. As I noted in Chapter 7, another

troubling concern raised by some mem-
bers of the public is that there are police
officers who refuse to provide their name
or badge number when requested to do
so. The circumstances in which this oc-
curs may fall outside of regulated inter-
206 The Independent Street Checks Review

Recommendation 11.18 Recommendation 11.19

The Code of Conduct should be It should be considered mis-

amended to state conduct for police officers
2(1) Any chief of police or other who are not engaged in covert
police officer commits miscon- operations to refuse to provide
duct if he or she engages in, their name and badge number
if requested.
(g) UNLAWFUL OR UNNECES-
SARY EXERCISE OF AUTHORITY,
in that he or she, Availability of Records
(i.1) without good and sufficient 68. Finally, chiefs of police are required
cause authorizes, condones or to make certain information available to
makes an unlawful or unneces- the Minister of Community Safety and
sary physical or psychological Correctional Services.
detention,
69. Under section 16 of the Regulation,
***
the MCSCS may request a chief of police
(iii) collects or attempts to col- to provide relevant information, when the
lect identifying information MCSCS is carrying out a duty or exer-
about an individual from the cising a power under clauses 3(2)(b),(d),
individual or authorizes or con- (e) or (h) of the Police Services Act.355 As
dones such activity in the cir- such, the MCSCS acts as a secondary
cumstances to which Ontario level of review to ensure that the Regu-
Regulation 58/16 (Collection of lation is being followed properly. I have
Identifying Information in Cer- no recommendations to make regarding
tain Circumstances – Prohibi- this section.
tion and Duties) made under
the Act applies, other than as
permitted by that regulation.
 Chapter 12
Other Policy and Procedural
Recommendations to Improve the
Implementation of the Regulation
 Chapter 12 • Other Policy and Procedural Recommendations 209

Introduction are a vital part of policing in Ontario

1. Demands on police officers have and go a long way in establishing and
consistently increased over the years and maintaining strong police–community
continue to grow year by year. Police of- relations which, in turn, are essential to
ficers are no longer simply defenders of improving public trust and confidence
public order. They are undertaking tasks in policing. Public safety is assured only
traditionally associated with social work- when there is strong, widespread public
ers, paramedics, mediators, matrimonial trust and confidence in policing.
counsellors, mental health workers and 5. One example of successful commun-
youth workers. Their responsibilities are ity involvement is the Toronto Police Ser-
numerous and constantly evolving. vice’s Youth in Policing Initiative (YIPI),
2. One of the issues I was asked to con- which was launched in 2006. YIPI em-
sider in the terms of reference relates to ploys youth who are: 15-18 years old and
overarching amendments, policy and/or enrolled in a secondary or post-second-
procedural changes to improve the im- ary institution, permanent residents of a
plementation of the Regulation. neighbourhood improvement area, and
successful through all employment secur-
3. The Review is not authorized by its ity clearance processes, to work with po-
mandate to include a detailed examina- lice officers.356 Having young people work
tion of ways to reform policing in On- with police officers helps to bridge the gap
tario but, in light of the ever-expanding in community policing while improving
role of police officers, there are some ways public trust and breaking down barriers.
that the issues involved with street checks
intersect with police practice generally.
As such, I feel it is worthwhile to make Demands on police officers have
some general recommendations related consistently increased over the
to community policing, partnerships with years and continue to grow year
Indigenous communities, locally-based
policing, youth education, and diversity
by year.
and inclusion in police services.

Community Policing 6. The program was so successful that,

in 2012, it expanded into a year-round
4. Several police services have already program. Participants work alongside
adopted neighbourhood policing initia- uniform officers and civilians in a var-
tives: police officers interact and engage iety of capacities including administrative
with members of the community through work, crime prevention and commun-
the development and co-delivery of pro- ity engagement. The participants receive
gramming. Such initiatives should be en- over 40 hours of professional and per-
couraged and continued. These programs
210 The Independent Street Checks Review

sonal development training, which allows 8. While this is just one example of
them to enhance their leadership skills a successful community initiative (and
as well as their confidence. The program I have seen many valuable community
creates, through mentorship, an avenue policing initiatives during my consul-
for young people to develop meaningful tations in Ontario, including the Com-
relationships with the police. It gives po- munity Safety Village in York Region and
lice officers an opportunity to learn more the Neighbourhood Resource Centre in
about the youth, their goals and their Sault Ste. Marie), it highlights how fund-
neighbourhoods. YIPI also improves ing can be better directed to forging more
overarching police–community relations positive relationships between police and
by strengthening connections with the communities.
family members and friends of program
9. Police officers should not be expected
participants, who then consequently also
to spend their day running from call to
have an improved outlook on police.
call or to spend the entire day sitting in
their cruisers. They should be allowed suf-
Having young people work ficient time to spend an hour or two each
day to get out and informally meet with
with police officers helps to
members of the community. In doing so,
bridge the gap in community they can learn information that might be
policing while improving public of future assistance while also creating
trust and breaking down bar- new, positive relationships.
riers. 10. Having police officers available to
spend some time in the community might
involve some overall increase in labour
7. The initiative is so popular that each
costs. Such a cost increase may well be
year it receives roughly 2,000 applications
offset by the cost reduction of having
for the 279 available spots. Throughout
members of the public willing to assist
its history, YIPI has employed over 2,500
police to solve crimes and improve overall
students from marginalized neighbour-
public trust and confidence in policing. In
hoods and produced at least 6 police of-
any event, police services should be pro-
ficers and a handful of civilian members.
vided with adequate funding to perform
It should be noted that, due to the pro-
their duties effectively.
gram’s success in Toronto, over 20 large
and small police services in Ontario, in- 11. One model that police services in
cluding police services in York Region, Ontario should consider exploring is
Peel Region, Ottawa, Windsor, London, the New York Police Department’s 2014
Hamilton, Kingston, Thunder Bay and “Precision Policing” model, which blends
Sault Ste. Marie, have opted to start a law enforcement with neighbourhood
program of their own. policing. Under the neighbourhood poli-
 Chapter 12 • Other Policy and Procedural Recommendations 211

cing branch, certain dedicated officers are 13. Unfortunately, as discussed in Chap-
responsible for becoming more familiar ter 2, the relationship between police and
with the neighbourhoods they patrol in- many Indigenous peoples throughout
stead of responding to calls for service. Ontario is a complex one.
They do this by attending community
14. During my meetings with police
events and building strategic relation-
services across the province, I was often
ships with local residents, community
told about their efforts to build aware-
leaders, city agencies, non-profits, faith-
ness about Indigenous issues among their
based groups, activists and community
uniform and civilian members, including
leaders.357
certain community outreach initiatives
and various courses on these issues. Some
Recommendation 12.1 courses involved members from the local
Indigenous community and some did not.
Police services should be pro- These awareness courses varied across the
vided with adequate funding province in both content and time dedi-
to allow for greater commun- cated to these issues. It is my hope that,
ity involvement and to support going forward, these courses and outreach
other models of community programs will continue and grow, and will
policing that enable police offi- all include advice and participation from
cers to spend some time each members of Indigenous communities.
day in the community. 15. Respectful relationships with In-
digenous peoples take time and commit-
ment from both sides. In 2007, the Ipper-
Partnerships with Indigenous wash Inquiry provided a detailed report
Communities that outlined a framework for respectful
12. It has been well-documented by many relationships and urged all governments
reports and commissions that Indigenous to work towards reconciliation with In-
peoples in Canada are over-represented digenous peoples. This report also de-
in the criminal justice system as both scribed the historical relationship between
victims and offenders – despite the fact police and Indigenous communities and
that the reporting rate to authorities for provided valuable recommendations on
Indigenous peoples who are victims of how to improve these relationships. Cer-
crime is much lower than for other Can- tain recommendations outline how police
adians. For this reason, building respect- can establish and maintain respectful re-
ful and meaningful partnerships between lationships with Indigenous commun-
police and Indigenous communities is of ities by: highlighting the importance of
particular importance to help police do maintaining active, ongoing monitoring
their jobs and keep people safe. strategies for police–Indigenous relations;
212 The Independent Street Checks Review

and establishing a public accountability Locally-Based Policing

process for culturally insensitive con- 17. During my consultations throughout
duct by officers.358 Other recommenda- the province, some stakeholders reported
tions require the provincial government to me their concern that many police of-
to: develop a provincial police–Indigen- ficers serving a community often did not
ous relations strategy; commit sufficient live within that community. Instead the
resources to support police–Indigenous officers commuted to work from a dif-
relations initiatives; and issue a directive ferent city and then mainly remained in
to all police services in Ontario requiring their police cruisers while on duty. As a
officers to report all incidents of racism or result, those police officers were perceived
other culturally insensitive behaviour by as being less knowledgeable about the
other officers.359 dynamics of the community they served,
and not representative of the community
itself.
Respectful relationships with
Indigenous peoples take time 18. Given the trend toward community
and commitment from both policing, it is preferable to have police
officers hired from the community where
sides. they live in order for them to truly reflect
and represent their community. Many po-
lice stakeholders from smaller commun-
16. Although these recommenda- ities noted that they never had to engage
tions were created in the context of the in carding because they already knew who
events at Ipperwash and were specifically the people were in their community. With
directed at the Ontario Provincial Police community policing, a small community
and the MCSCS, they are valuable and that is part of a larger city can give local-
relevant to all police services when they ly-based officers the same opportunity to
are seeking to build and improve partner- get to know local residents and reduce the
ships with Indigenous communities. need for intrusive requests for informa-
tion.

19. Some police officers understandably

Recommendation 12.2 do not wish to live in the cities, regions
and communities where they work. Some
officers could feel torn between their dut-
Police services should increase
ies as police officers and their allegiance
outreach to and establish
to their community. Others do not wish
meaningful and equitable part-
to have to arrest or sanction people they
nerships with Indigenous com-
may see every day or who may live on
munities.
their street. While those concerns are
 Chapter 12 • Other Policy and Procedural Recommendations 213

understandable, they should not over- Education for Youth: Rights,

whelm the benefit of having locally-based Responsibilities and Marginalized
policing. While police officers cannot be Communities
compelled to remain living within a juris-
21. In my consultations with police ser-
diction, if they are hired from within a
vices and community groups across On-
community, it is conceivable that, having
tario, I was impressed by the range of in-
already established roots there, they will
novative work being done to teach young
be more likely to remain within that com-
people about their rights, including the
munity.
development of “know your rights” cards
20. To develop lasting community rela- for youth and apps on important legal and
tionships, the same police officers should human rights topics. Particular attention
remain engaged in the local community should be paid to developing materials
for an extended period of time rather and modules for schools to teach students
than being transferred between different from a young age about the Regulation
neighbourhoods. Individuals and busi- as well as their rights and responsibilities
nesses based in a particular community more generally.
should be able to form relationships with
local police officers when possible.
Individuals and businesses
based in a particular com-
Recommendation 12.3 munity should be able to form
relationships with local police
Efforts should be made by po-
officers when possible.
lice services to hire police offi-
cers who live within the city or
22. Saskatchewan provides an interest-
region they will serve.
ing model on rights and responsibilities
education for students in schools that is
worth considering in Ontario. In Sas-
katchewan, the Concentus Citizenship
Recommendation 12.4 Education Foundation Inc., a partner-
ship between a range of government
Community police officers agencies including the Saskatchewan
should serve in community Human Rights Commission, Ministry
neighbourhoods for a suffi- of Education and the Ministry of Justice
cient period of time to form of the Government of Saskatchewan and
meaningful local relationships. educators, developed a robust K–12 civic
education program in schools focused on
214 The Independent Street Checks Review

the rights and responsibilities of citizens. expanded in many ways, Black and In-
The program has been recognized inter- digenous people are still often portrayed
nationally as innovative and cutting-edge, as people to be feared and subject to
and Concentus is working to ensure that broad stereotypes.
every province and school board across
26. Throughout my consultations, Black
Canada implements this program in its
and Indigenous people – particularly
curriculum.360
youth – consistently related to me a sense
23. In addition to education on rights of alienation and disaffection from main-
and responsibilities, the Ontario school stream society and a real, tangible feeling
curriculum should ensure that all stu- that others viewed them with mistrust.
dents receive some exposure to Black and Our versions of reality are based on what
Indigenous history in Canada, taught by we have lived. If society expects that
people from those communities. Black youth are likely to become gang
members, then a disproportionate num-
24. It is no accident that the two groups ber of Black youth will be more likely to
most marginalized by society are the same become gang members. That reality can
two groups that have faced – and continue change when people are provided with
to face – systemic discrimination. The alternate perspectives. It is critical that
Truth and Reconciliation Commission the Ontario school curriculum make a
of Canada has identified and is trying to concerted effort to eradicate stereotypes
address issues of systemic discrimination and engender a deep understanding of
for Indigenous peoples. Similarly, a range Black and Indigenous history and current
of studies have looked at the specific his- realities.
toric and current issues faced by Black
communities. 27. This history and the need to teach
it to our young people are critically im-
25. Students should not graduate from portant. It is too simplistic to state that
high school ignorant of the historical and carding is a problem that was created by
current challenges that have been faced by the police alone. In fact, it was a practice
these two groups. Students cannot gather that was implemented and expanded for
their information on these communities decades with the implicit approval of our
from television programs or films. The society as a whole.
depiction of Black people on television
and film in the 1950s and 1960s showed 28. There is no quick fix to the problem of
them in the roles of servants or criminals. systemic discrimination. As noted earlier,
The depiction of Indigenous peoples was implicit bias training may help people to
often limited to Western movies in the recognize but not eliminate deep rooted
stereotypical “cowboys and Indians” films. beliefs. We need an integrated approach
While the depiction of these groups in throughout all government ministries
television and film has improved and and organizations. Justice, education and
 Chapter 12 • Other Policy and Procedural Recommendations 215

mental health are not separate issues, and specifically mandates the “need to ensure
they should not operate in silos. Encour- that police forces are representative of the
aging in youth a deep, robust understand- communities they serve”.361
ing of the history and current realities of
30. Diversity in policing will help dispel
Black and Indigenous peoples will ensure
myths and stereotypes about people from
that this history is understood and that its
marginalized communities. Diversity and
manifestation in modern institutions and
inclusion in policing brings new perspec-
approaches is recognized. Specifically, for
tives, cultural sensitivity and a deeper
the youth who graduate and choose ca-
understanding of the communities that
reers in policing, they will do so equipped
police serve. The recruitment of officers
with a broader understanding of the soci-
from minority or racialized backgrounds
ety in which they live.
may also benefit racially, culturally or lin-
guistically diverse communities.362
Recommendation 12.5
31. Having a diverse police service cre-
ates avenues for minority officers to build
Efforts should be made bridges between police services and vari-
to ensure that youth are ous communities.363 Indeed, the lack of
taught about their rights and diversity has placed undue burdens on
responsibilities, as well as Black existing diverse officers, by putting them
and Indigenous history, as part and their work under more public and
of the school curriculum. Infor- organizational scrutiny, and creating feel-
mation on the Regulation and ings of isolation and disconnection from
its operation should be includ- other officers.364 Some diverse police of-
ed in the curriculum. ficers have reported that they themselves
have been the subjects of carding. It is
certainly relevant that they can share their
Diversity, Inclusion and Police experience with other officers.
Culture
32. Statistics tell the story of the lack of
29. Part of the perception of discrimina-
diversity in policing. Recruitment in po-
tion in street checks may result from the
lice services over the last 15 years shows
fact that the police officer conducting
a demonstrated lack of representation
the street check often comes from a dif-
despite persistent messaging from police
ferent racial background than the person
services of a commitment to diversity in-
being asked for identifying information.
itiatives.365 For instance, based on a July
I believe that a diverse, inclusive police
2016 CBC News report, 57% of Peel Re-
service at all ranks will help address that
gion is diverse but its police force only has
concern and make an overall meaningful
19% non-white officers. In York Region,
difference. In fact, the Police Services Act
44% of the population but only 17% of
216 The Independent Street Checks Review

the police force is diverse. Over 50% of 36. Police services, like other institutions,
Toronto’s population but only 25% of the should reflect at all ranks – from front-
police service is non-white.366 line officers to senior command – the
communities they serve. This is essential
if we are to build trust and confidence in
Diversity in policing will help these services. It is important to add that
dispel myths and stereotypes the representation of Indigenous, Black
and other racialized communities in po-
about people from marginalized
lice services across this province must go
communities. beyond mere tokenism. Representation
from these groups must form a critical
mass across entire services and within the
33. Canadian data indicate that police different service units and sections. This
organizations are hiring older applicants will not only diversify the representation
with higher education, and improving ef- of different groups within services but also
forts to hire female and racialized recruits, diversify the skills and experiences with-
but this is not enough. There continues in services. This diversity is important
to be a demonstrated record of under- if we are going to bridge understanding
representation of diverse communities in between police services and Indigenous,
the profession.367 Black and other racialized communities.
34. Everyone wants to feel safe and pro- 37. It is important to note, however, that
tected in their community. Meaningful simply having a diverse police service
relationships and partnerships need to does not necessarily result in improved
be built with communities, especially the police-community relationships or en-
Indigenous, Black and other racialized gender a rights-based approach to poli-
communities. This includes, for example: cing. Police culture is very strong and,
municipal and provincial appointments regardless of an officer’s racial identity,
on police services boards; hiring, reten- sexual orientation, gender or Indigen-
tion and promotion of new recruits and eity, it can lead to the officer adopting the
civilian staff; and more community in- prevailing norms and approaches of the
volvement in police training and public organization – which are determined by
safety initiatives. the majority group within the profession
35. I believe most Indigenous, Black and – thereby limiting the impact of diversity
other racialized communities are hopeful in the service.368 At its core, police cul-
about the potential for their future rela- ture is rooted in the established notion
tionship with the police. This hope is par- that police work is hierarchical and mis-
ticularly prevalent among young people, sion-driven, and that anything done in
some of whom aspire to become police furtherance of the mission is considered
officers. to be serving a greater good.369
 Chapter 12 • Other Policy and Procedural Recommendations 217

38. In my many meetings with commun- forcers. We need the institution of

ity groups, members of the public and policing to evolve from a thin blue line
Indigenous, Black and other racialized that separates police from commun-
communities throughout the province, ity to a thin blue thread that is inter-
I heard instances of Indigenous, Black woven within the fabric of society. It’s
and other racialized officers being es- a change that must happen quickly to
pecially harsh in their interactions with have any hope of keeping pace with
members of these communities. This ap- near-constant social change and digit-
proach could be explained by the prevail- al disruptions.371
ing norms of police culture and its mis-
40. The culture of policing must adapt
sion-driven approach. It may also reflect
to the ever-changing demographics of
a concern among Indigenous, Black and
Canadian society and Canada’s stated
other racialized officers about not being
commitment to equality, diversity and
seen as favouring any particular group.
inclusion. Police services must take con-
crete actions to inspire and expedite this
Police services, like other in- cultural shift.
stitutions, should reflect at all
ranks – from frontline officers to
Recommendation 12.6
senior command – the commun-
ities they serve. The MCSCS should work in con-
junction with police services
39. Police culture is a palpable, powerful and the Ontario Association of
force that can cause racialized, Indigen- Chiefs of Police to design and
ous, LGBTQ2 and female officers to as- launch public surveys to seek
similate, because they are immersed in the input from Indigenous, Black
same culture and this culture, rooted in a and other racialized commun-
hierarchical structure founded on com- ities on policing in Ontario.
pliance and adherence to strict norms,
shapes how officers act and think.370 Ac-
cording to the former Deputy Chief of Recommendation 12.7
the Toronto Police Service, Peter Sloly,
the biggest issue facing policing that re-
quires attention is a change to police cul- The Ontario Association of
ture. He states: Chiefs of Police should survey
the experiences and views of
We need officers who see themselves diverse members in police ser-
as servers who can become protectors vices throughout the province.
when needed rather than as law-en-
218 The Independent Street Checks Review

Recommendation 12.8 Recommendation 12.11

Each police service in Ontario

Police services should hold
should have a diversity officer
regular consultations with the
(or, for smaller police services,
public and members of diverse
an officer whose duties include
communities to obtain feed-
diversity) or a diversity bureau
back on police diversity initia-
dedicated to establishing a con-
tives and to improve police–
structive link between the po-
public relations.
lice and diverse communities.

Recommendation 12.9

Recommendation 12.12
Police services should develop
local strategies to improve di-
versity and inclusion at all lev- The Ontario Police College
els of the service. The MCSCS should review its curriculum,
should work on the develop- teaching methods and evalua-
ment of a model strategy on tion techniques to identify and
diversity and inclusion for eliminate barriers to success
adoption, adaptation (to lo- for recruits from diverse and
cal concerns and realities) and marginalized communities.
implementation by services
throughout Ontario.

Recommendation 12.10 Recommendation 12.13

Police services should under-

The MCSCS should establish
take a systemic review of their
selection criteria for police ser-
recruitment and promotional
vices board appointees with a
processes, including a focus on
specific focus on recruiting ap-
examinations, interviews and
plicants who reflect the divers-
assessment tools to ensure
ity of the communities they
that they are inclusive and bi-
serve.
as-free.
 Chapter 12 • Other Policy and Procedural Recommendations 219

Recommendation 12.14

Police services boards should

be responsible for developing
relevant board policies on di-
versity within the police ser-
vice, overseeing efforts of the
police service to recruit and
promote diverse members,
and reviewing and approving
the service’s diversity plan.
 Part VI
Appendices
 Appendix A Appendix A • Recommendations 223

Recommendations

Chapter 2
Recommendation 2.1
The Government of Ontario should immediately proceed with amending the Regu-
lation in accordance with the recommendations made in this report. All amendments
must take into account the time and resources necessary for police services to ensure ef-
fective, proper training and implementation of the revised Regulation. The government
should allocate additional resources to police services specifically for this purpose.

Chapter 5
Recommendation 5.1
The Regulation should expressly state that no police officer should arbitrarily or ran-
domly stop individuals to request their identifying information.

Recommendation 5.2
Officers should be instructed that the requirements of the Regulation apply when a
police officer requests identifying information in a regulated interaction, whether or not
the officer retains and records the identifying information.

Recommendation 5.3
The term “identifying information” should be defined in the Regulation in a way that is
similar to the definition adopted by the Toronto Police Service, such as:

“Identifying information” means any information which, alone or in combina-

tion with other information, can be used to identify an individual. Identifying
information includes information about an individual’s race, age, sex, sexual ori-
entation, gender identity, marital or family status, socioeconomic circumstances,
and education, medical, psychiatric, psychological, criminal or employment
history.

Recommendation 5.4
The definition of identifying information should not include video surveillance or the
incidental photographing or recording of an individual during a regulated interaction,
such as could occur when an officer wears a body-worn camera.
224 The Independent Street Checks Review

Recommendation 5.5
The Province of Ontario should consider revising other Acts empowering police to
obtain identifying information to contain similar protections as those contained in this
Regulation.

Recommendation 5.6
The Regulation should apply to vehicle stops that are not otherwise exempt from the
Regulation.

Recommendation 5.7
The Regulation should specifically apply when identifying information is requested
from passengers of vehicles during vehicle stops when the passenger is not in violation
of the Highway Traffic Act, the Criminal Code, or any other Act of Parliament or Legis-
lature.

Recommendation 5.8
The Regulation should state expressly that it does not apply to attempts to confirm the
identity of an individual who matches the description of a missing person, human traf-
ficking victim or other victim of crime.

Recommendation 5.9
The Regulation should state expressly that it does not apply to interactions that have
a community-building purpose, meaning on-duty police contact with members of the
community meant to foster positive relationships and/or assist members of the public
without gathering identifying information for an investigative or intelligence purpose.

Recommendation 5.10
The procedures developed by chiefs of police should ensure that identifying information
requested by police officers in social situations or for the purpose of fostering communi-
ty relations or assisting members of the public is not recorded and stored in any regulat-
ed interactions police database.

Recommendation 5.11
The Regulation should specify that a regulated interaction should take no longer than
is reasonably necessary to satisfy the purpose of the interaction, and that police officers
should not prolong a regulated interaction in the hope of acquiring reasonable suspicion
to detain.

Recommendation 5.12
Remove subsection 1(2) of the Regulation and replace with:
Despite subsection (1), this Regulation does not apply with respect to an attempted
collection made by a police officer for the purpose of investigating an offence the officer
 Appendix A • Recommendations 225

reasonably suspects has been, is being or will be committed, and the person from whom
the identifying information is requested appears to have some connection to the offence
whether as a suspect or as someone who has helpful information about the offence.

Recommendation 5.13
“Suspicious activity” should be defined in the Regulation to mean an activity where, un-
der all of the circumstances, there are objective, credible grounds to request identifying
information.

Recommendation 5.14
Police officers should be directed and trained that when there is a suspicious activity
and it is feasible to do so, a police officer should first make inquiries of an individual to
confirm or dispel the officer’s suspicion without requesting identifying information.

Recommendation 5.15
No police service should randomly stop people in order to collect and record identifying
information and create a database for general intelligence purposes.

Chapter 6
Recommendation 6.1
Remove subsections 5(1), (2) and (3) of the Regulation, and replace with:

5 (1) A police officer shall not attempt to collect identifying information from an indi-
vidual if:
(a) any part of the reason for the attempted collection is a prohibited ground of dis-
crimination under section 1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19,
or is due to the individual’s socioeconomic status, or

(b) the attempted collection is done in an arbitrary way.

(2) A police officer may consider if an individual is part of a group protected by a pro-
hibited ground of discrimination under section 1 of the Ontario Human Rights Code or
the individual’s socioeconomic status (“protected group”) if:
(a) the officer is seeking a particular individual;

(b) being within a protected group(s) forms part of a credible, reasonably specific
description relating to the individual or is evident from a visual representation of the
individual; and

(c) the description consists of more than the individual’s membership in a protected
group(s).
226 The Independent Street Checks Review

Recommendation 6.2
The wording of clause 5(4)(1) should be changed to “details about the individual and/
or the circumstances” that cause the officer to reasonably suspect that identifying the
individual may contribute to or assist in an inquiry.

Recommendation 6.3
Officers should be trained and informed that they should have articulable reasons for
initial inquiries and gathering of information. No part of the reasons for the initial
inquiry or gathering of information may be a ground prohibited by the Regulation.

Chapter 7
Recommendation 7.1
Requests for information should be conducted in a professional and civil manner that
respects the individual and inspires confidence in the police and their interactions with
the public.

Recommendation 7.2
Before identifying information is requested, individuals should be informed of the fol-
lowing:
(a) the reason for the request to provide identifying information;
(b) that, if the individual provides identifying information, the information may be
recorded and stored in the police records management system as a record of this inter-
action;
(c) that participation is voluntary; and
(d) that, if they chose to provide information, some of the identifying information
that may be requested, such as the person’s religion, is being requested by law to help
eliminate systemic racism.

Recommendation 7.3
Officers should be trained to inform individuals of the above-noted rights in a tone and
manner that does not convey the message that compliance is required.

Recommendation 7.4
If an individual is requested to produce an identification document in a regulated in-
teraction and the individual voluntarily complies, the identifying document should be
retained for no longer than is necessary to verify the information that had been provid-
ed, and should then be immediately returned to the individual.

Recommendation 7.5
(a) Where it appears the individual stopped in a regulated interaction may be under
the age of 12 years old, the individual should be asked their age before they are asked to
 Appendix A • Recommendations 227

provide other identifying information. If the individual is under 12 years old, a request
should be made as to whether there is a readily available parent or guardian who can
attend during the regulated interaction.
(b) If there is a readily available parent or guardian, the regulated interaction should
take place in the presence of that person.
(c) If there is no parent or guardian readily available, and the individual is under the age
of 12, the police officer should not request any identifying information from the indi-
vidual.
(d) Subsections (a) to (c) do not apply if the police officer is conducting a well-be-
ing check, confirming the identity of a missing or runaway child, human trafficking
victim or other victims of crime, or in a situation of urgency.

Recommendation 7.6
The information required to be on the receipt should be standardized across Ontario
and set out in both official languages.

Recommendation 7.7
The receipt should contain only: the name and badge or identification number of the
police officer; the date, time and location of the regulated interaction; and include an
area for the officer to record the reason for the regulated interaction.

Recommendation 7.8
The receipt provided to the individual should be a numbered carbon copy or identical
copy of what is retained by the police officer.

Recommendation 7.9
A police officer in a regulated interaction should record the following:
(a) the officer’s specific reason for the stop or the attempt to collect identifying infor-
mation;

(b) whether the individual refused to provide identifying information;

(c) any relevant suspect profile or intelligence report relied upon to make the request
for information;

(d) the time, date and duration of the stop;

(e) the location of the stop;

(f ) the name and religion of the person stopped, if it is voluntarily provided;

(g) the age group, gender, race and ethnic origin of the person stopped, as perceived
by the police officer – if the person stopped voluntarily provides this information, it
also should be recorded;
228 The Independent Street Checks Review

(h) whether the person was requested to provide a document confirming their iden-
tity, and if so, why the request was made;

(i) an indication if any frisk or search was conducted and, if so, the reason for the
frisk or search and whether the person consented to the frisk or search;

(j) an indication as to whether any force was used and, if so, the reason why force was
used;

(k) an indication if any person was injured or any property damaged or confiscated as
a result of the regulated interaction and, if so, the reasons;

(l) any further action taken as a result of the regulated interaction, such as a warning
or arrest;

(m) an indication as to whether there were any other people accompanying the person
stopped and, if so, an indication as to the number of people, their perceived racial or
ethnic background and an indication if they also were required to provide identifying
information;

(n) an indication if the regulated interaction was successful in obtaining information

needed to satisfy the purpose for conducting the regulated interaction;

(o) the officer’s name, identification or badge number and unit;

(p) if the individual appears to be under 12 years old, whether the child was asked if
a parent or guardian was available to attend and whether the regulated interaction was
conducted with a parent or guardian;

(q) whether the individual was informed of the information as required by section 6
of the Regulation or, if informing the individual was not required, the reason why that
was not required; and

(r) whether the individual was offered or given the receipt as required by section 7
of the Regulation or, if offering or giving the receipt was not required, the reason why
that was not required.
Recommendation 7.10
For requests for identifying information made from passengers of motor vehicles, the
following information should also be recorded:
(a) the traffic violation or other violation precipitating the stop;
(b) the reasons why the passenger was requested to provide identifying information;
and
 Appendix A • Recommendations 229

(c) an indication whether the passenger was required to leave the vehicle and, if so,
the reason why.

Recommendation 7.11
There should be a standardized, province-wide form on which the street check data is
recorded either physically or electronically.

Recommendation 7.12
The forms should include checkboxes, to record the reasons for making the stop and
require commentary in free text to articulate those reasons.

Chapter 8
Recommendation 8.1
The Regulation should state that chiefs of police should ensure that every police officer
on their police service who attempts to collect identifying information does so in com-
pliance with this Regulation.

Recommendation 8.2
Identifying information should be included in a restricted database until it has been
confirmed that it is in compliance with the Regulation and may be included in a
non-restricted database.

Recommendation 8.3
There should be limited types of ongoing police investigations for which access to re-
stricted information may be obtained.

Recommendation 8.4
Whenever a person views information in the restricted database, a record should be
made of who viewed the information and the reason for viewing the information.

Recommendation 8.5
Information obtained during a regulated interaction should not be shared with any
other government agency for any purpose other than as set out in subsection 9(10)(2) of
the Regulation.

Recommendation 8.6
Identifying information should be destroyed no later than five years after it is first
entered into a police database unless it is being used for a purpose set out in subsection
9(10)(2) of the Regulation, in which case it should be destroyed once it is no longer
required for that purpose.
230 The Independent Street Checks Review

Recommendation 8.7
A police service may elect to destroy identifying information earlier than five years after
it was collected.

Recommendation 8.8
Define and standardize an “appropriately sized random sample” needed for data analysis
by chiefs of police/designates across the province.

Recommendation 8.9
The collected and de-identified data should be made available to reputable independent
organizations for research purposes.

Recommendation 8.10
Identifying information collected before January 1, 2017 to which this Regulation
would have applied had the information been collected after January 1, 2017 (“historical
data”) should be stored in a restricted database and only be used for a purpose set out in
subsection 9(10)(2) of the Regulation.

Recommendation 8.11
The authorization required under subsection 9(10)(1) of the Regulation should apply to
historical data.

Recommendation 8.12
Historical data should be automatically destroyed five years after it was collected unless
it is being used for a purpose set out in subsection 9(10)(2) of the Regulation, in which
case it should be destroyed once it is no longer being used for that purpose.

Recommendation 8.13
A police service may elect to destroy historical data earlier than five years after it was
collected.

Chapter 9
Recommendation 9.1
The training should be provided to those who supervise the police officers who attempt
to collect identifying information as well as to those who verify the submitted regulated
interactions and the collected identifying information for compliance with the Regula-
tion.

Recommendation 9.2
Police services should ensure that supervising officers support the operation of not only
the Regulation, but also the direction of police leadership.
 Appendix A • Recommendations 231

Recommendation 9.3
Police services should select trainers who are supportive of the Regulation, and who are
seen by police officers to be credible.

Recommendation 9.4
The training should be standardized and include the following topics:
(a) The reason for the Regulation and the legal framework under which requests for
information may be made, including the meaning of articulable cause, reasonable suspi-
cion and investigative detention;
(b) How to take proper notes of the reasons for the interaction;
(c) Rights of individuals under the Canadian Charter of Rights and Freedoms and the
Ontario Human Rights Code;
(d) The initiation of interactions with members of the public;
(e) The right of an individual not to provide information to a police officer, the lim-
itations on this right and how to ensure that this right is respected;
(f ) The right of an individual to discontinue an interaction with a police officer,
the limitations on this right and how to avoid unlawfully psychologically detaining an
individual;
(g) Bias awareness, including recognizing and avoiding implicit bias, as well as how
to avoid bias and discrimination;
(h) Promoting public trust and public confidence by recognizing the social cost of
some historic police practices;
(i) Indicating how the use of respectful language, tone and demeanour during regu-
lated interactions benefits the community, individuals, officers and police services;
(j) Strategic disengagement and conflict de-escalation techniques, as well as
de-personalization techniques particularly when an individual is disrespectful during a
regulated interaction;
(k) Training on the specific communities being served and their particular issues;
(l) Adolescent development as it may relate to a regulated interaction and the
specific requirements and limitations related to collecting identifying information from
children;
(m) The impact of technology such as mobile phones and body-worn cameras;
(n) The rights that individuals have to access information about themselves that is
in the custody or under the control of a police service; and
(o) The Regulation and its application.

Recommendation 9.5
The training should consist of more than video presentations. The training should in-
clude realistic real-world scenarios and role playing.
232 The Independent Street Checks Review

Recommendation 9.6
The training should be prepared and delivered with the assistance of members of police
services who understand the challenges of regulated interactions and the realistic sce-
narios police officers might encounter.

Recommendation 9.7
The training should be prepared and delivered with the assistance of racialized groups
and Indigenous peoples who understand the effect of regulated interactions.

Recommendation 9.8
Anti-bias training should be provided to all police officers and not just those who are
most likely to be involved in a regulated interaction.

Recommendation 9.9
The training should involve testing.

Recommendation 9.10
The training should have a special focus on the ability to articulate the reasons for a
regulated interaction.

Recommendation 9.11
There should be annual refresher training on the Regulation for all police officers.

Recommendation 9.12
When a police officer transfers from one police service to another, they should be re-
quired to receive training about the specific communities being served and their partic-
ular issues.

Recommendation 9.13
Consideration should be given to establishing a College of Policing.

Recommendation 9.14
Working with post-secondary institutions, a task force or advisory group should be
created to evaluate, modernize and renew police studies and law enforcement-related
course offerings across post-secondary institutions. Consideration should be given to
updating the Ontario Police College curriculum, including the creation of a post-sec-
ondary degree in policing.

Recommendation 9.15
A Code of Practice similar to those used in the United Kingdom should be developed
to explain how the Regulation operates and the circumstances under which it is to be
applied.
 Appendix A • Recommendations 233

Recommendation 9.16
The Province of Ontario should make efforts to raise public awareness about the con-
tent of the Regulation, and the circumstances under which people are and are not
required to provide identifying information to the police. These efforts should involve
collaboration with community groups, youth advocacy groups, legal aid clinics and
school boards.

Recommendation 9.17
The MCSCS should launch a full, cross-platform advertising and social media cam-
paign to inform the public about the Regulation and its operation.

Recommendation 9.18
The Code of Practice should be made publicly available on the internet and in print, in
all accessible formats.

Chapter 10
Recommendation 10.1
There should be a minimum, consistent, province-wide policy to implement the Regula-
tion that is binding on police services boards, similar to the policing standards provided
for other policing activities.

Recommendation 10.2
If it is determined that the information contained in the street checks database is incor-
rect, then that information should be restricted and eventually purged.

Recommendation 10.3
The policies should seek to eliminate regulated interactions that are based, even in part,
on a prohibited ground of discrimination under the Ontario Human Rights Code, absent
a reason such as is currently allowed by the Regulation for an individual’s racialized
background.

Recommendation 10.4
Police services boards may develop further policies that expand on the content of the
Regulation for the purpose of protecting human rights and preventing discrimination.

Recommendation 10.5
No information collected in a regulated interaction, including identifying information
obtained prior to January 1, 2017, to which this Regulation would have applied had the
information been collected after January 1, 2017, should be used as a basis to classify a
person as being “known to the police” or result in an entry on an individual’s clearance
letter, police reference check, vulnerable sector check or any police record check required
by the Police Record Check Reform Act.
234 The Independent Street Checks Review

Recommendation 10.6
Chiefs of police should review the procedures they developed in order to ensure that the
procedures are consistent with the policies developed by the local police services boards,
including any requirements that go beyond the Regulation.

Recommendation 10.7
The procedures should seek to eliminate regulated interactions that are based, even in
part, on a prohibited ground of discrimination under the Ontario Human Rights Code,
absent a reason that is allowed by the Regulation.

Recommendation 10.8
Chiefs of police may develop procedures that expand on the content of this Regulation
for the purpose of protecting human rights and preventing discrimination.

Recommendation 10.9
The procedures should be binding on chiefs of police.

Chapter 11
Recommendation 11.1
The MCSCS, in consultation with the Ontario Association of Chiefs of Police, should
develop a template annual report.

Recommendation 11.2
Annual reports should be made publicly available within the first six months of the
following calendar year.

Recommendation 11.3
The annual report should list the number of complaints and requests for information
related to regulated interactions.

Recommendation 11.4
The potential age groups of those requested to provide identifying information should
be standardized.

Recommendation 11.5
The age groups should distinguish between children and adults.

Recommendation 11.6
The recommended age groups are:
0-11
12-17
18-29
 Appendix A • Recommendations 235

30-39
40-49
50-59
60-69
70-79
80 and over

Recommendation 11.7
The potential racial or ethnic groups of those requested to provide identifying informa-
tion should be standardized.

Recommendation 11.8
The recommended racial or ethnic groups are:
Indigenous including: First Nations (North American Indian), Inuit, Métis

• White
• Black
• Latin American including: Central American, South American, Mexican, Cuban,
Puerto Rican, etc.
• East Asian, Southeast Asian including: Chinese, Japanese, Filipino, Korean, Southeast
Asian, Vietnamese, Cambodian, Malaysian, Laotian, etc.
• South Asian including: East Indian, Pakistani, Sri Lankan, etc.
• Middle Easterner including: Arab, Iranian, Afghan, etc.
• Other including: Visible minorities not included elsewhere and multi-racialized indi-
viduals

Recommendation 11.9
The term “disproportionately” as contained in section 14(2)(9) of the Regulation should
be defined so as to be applied consistently.

Recommendation 11.10
When determining whether there was a disproportionate number of street checks, the
collected data should be compared to the local census data to determine if there is a
statistically significant difference.

Recommendation 11.11
The number of regulated interactions in each neighbourhood or area should also indi-
cate the age, race and gender of the person stopped compared to the census data for that
area.
236 The Independent Street Checks Review

Recommendation 11.12
The collected, de-identified data provided by a chief of police to a police services board
under section 14 of the Regulation should be made publicly available.

Recommendation 11.13
The identifying information received should be monitored as it is received to ensure
compliance with the Regulation.

Recommendation 11.14
There should be an early indication system to identify, correct and warn officers who
unintentionally collect identifying information contrary to the Regulation.

Recommendation 11.15
If it is determined that identifying information was unintentionally collected contrary
to the Regulation, the officer who collected the information must be notified as soon as
possible of the reason why the collection was found not to have been obtained in com-
pliance with the Regulation.

Recommendation 11.16
In appropriate circumstances, an officer who collects identifying information in breach
of the Regulation should receive additional training. If necessary, the officer should not
conduct regulated interactions until the retraining has been completed.

Recommendation 11.17
An officer who persists in collecting identifying information in breach of the Regulation
without reasonable excuse should be subject to discipline.

Recommendation 11.18
The Code of Conduct should be amended to state
2(1) Any chief of police or other police officer commits misconduct if he or she engages
in,
(g) Unlawful or Unnecessary Exercise of Authority, in that he or she,
(i.1) without good and sufficient cause authorizes, condones or makes an unlawful or un-
necessary physical or psychological detention,
***
(iii) collects or attempts to collect identifying information about an individual from the
individual or authorizes or condones such activity in the circumstances to which Ontario
Regulation 58/16 (Collection of Identifying Information in Certain Circumstances –
Prohibition and Duties) made under the Act applies, other than as permitted by that
regulation.
 Appendix A • Recommendations 237

Recommendation 11.19
It should be considered misconduct for police officers who are not engaged in covert
operations to refuse to provide their name and badge number if requested.

Chapter 12
Recommendation 12.1
Police services should be provided with adequate funding to allow for greater commu-
nity involvement and to support other models of community policing that enable police
officers to spend some time each day in the community.

Recommendation 12.2
Police services should increase outreach to and establish meaningful and equitable part-
nerships with Indigenous communities.

Recommendation 12.3
Efforts should be made by police services to hire police officers who live within the city
or region they will serve.

Recommendation 12.4
Community police officers should serve in community neighbourhoods for a sufficient
period of time to form meaningful local relationships.

Recommendation 12.5
Efforts should be made to ensure that youth are taught about their rights and responsi-
bilities, as well as Black and Indigenous history, as part of the school curriculum. Infor-
mation on the Regulation and its operation should be included in the curriculum.

Recommendation 12.6
The MCSCS should work in conjunction with police services and the Ontario Associa-
tion of Chiefs of Police to design and launch public surveys to seek input from Indige-
nous, Black and other racialized communities on policing in Ontario.

Recommendation 12.7
The Ontario Association of Chiefs of Police should survey the experiences and views of
diverse members in police services throughout the province.

Recommendation 12.8
Police services should hold regular consultations with the public and members of
diverse communities to obtain feedback on police diversity initiatives and to improve
police–public relations.
238 The Independent Street Checks Review

Recommendation 12.9
Police services should develop local strategies to improve diversity and inclusion at all
levels of the service. The MCSCS should work on the development of a model strategy
on diversity and inclusion for adoption, adaptation (to local concerns and realities) and
implementation by services throughout Ontario.

Recommendation 12.10
Police services should undertake a systemic review of their recruitment and promotional
processes, including a focus on examinations, interviews and assessment tools to ensure
that they are inclusive and bias-free.

Recommendation 12.11
Each police service in Ontario should have a diversity officer (or, for smaller police ser-
vices, an officer whose duties include diversity) or a diversity bureau dedicated to estab-
lishing a constructive link between the police and diverse communities.

Recommendation 12.12
The Ontario Police College should review its curriculum, teaching methods and eval-
uation techniques to identify and eliminate barriers to success for recruits from diverse
and marginalized communities.

Recommendation 12.13
The MCSCS should establish selection criteria for police services board appointees with
a specific focus on recruiting applicants who reflect the diversity of the communities
they serve.

Recommendation 12.14
Police services boards should be responsible for developing relevant board policies on
diversity within the police service, overseeing efforts of the police service to recruit and
promote diverse members, and reviewing and approving the service’s diversity plan.
 Appendix B
Appendix B • Order in Council and Terms of Reference 239

Order in Council and Terms of Reference

240 The Independent Street Checks Review
 Appendix B • Order in Council and Terms of Reference 241

Terms of Reference
Independent Review on O.Reg 58/16
On March 21, 2016, the province filed a new regulation, O. Reg. 58/16: Collection of
Identifying Information in Certain Circumstances – Prohibition and Duties (the ‘regula-
tion’), under the Police Services Act (PSA).

Section 17 of O. Reg 58/16 requires the Minister of Community Safety and Correctional
Services (‘minister’) to ensure a review of the regulation is conducted, and that a report on
the findings of the review is published, no later than January 1, 2019.

The regulation also requires that the individual conducting the review:

• Is not a public servant within the meaning of the Public Services of Ontario Act, 2006,
and is not employed in the Office of the Premier or in the office of a minister, and
• Consults with the Minister Responsible for Anti-Racism.

1. Mandate
1.1 The Review
The Independent Reviewer shall review O. Reg. 58/16 and report to the minister on:

Content of the regulation

a. Whether the regulation appropriately reflects the government’s goal of ensuring
that police-public interactions should be

◦◦ consistent,
◦◦ conducted without bias or discrimination, and
◦◦ done in a manner that promotes public confidence and keeps our communities
safe;

b. Whether the regulation appropriately reflects the following key principles stated
by the government:

◦◦ Ontario takes the protection of human rights very seriously and has zero tolerance
for racism or any form of discrimination based on the prohibited grounds set out
in the Human Rights Code, R.S.O. 1990, c. H. 19, s. 1,
◦◦ Ontario stands opposed to arbitrary, random stops that do not have a clear
policing purpose, and which are done solely for the purpose of collecting
identifying information;
c. Any recommendations in light of (a) and (b) above.
242 The Independent Street Checks Review

Implementation of the regulation

d. Whether police officers and chiefs of police are in compliance with the regulation,
including but not limited to:

◦◦ Limitations on the collection of certain information pursuant to section 5,

◦◦ Duties relating to the collection of information pursuant to sections 6-8,
◦◦ Data retention and management requirements pursuant to section 9,
◦◦ The elimination of performance targets pursuant to section 10,
◦◦ The delivery of training pursuant to section 11,
◦◦ The development of procedures pursuant to sections 13, and
◦◦ The provision of reports pursuant to sections 14 and 15
e. Whether police services boards have developed policies in compliance with section
12

f. The curriculum and related training materials developed by the Ontario Police
College to ensure compliance with section 11, and make recommendations regard-
ing the effectiveness of the training

g. The approaches police services have adopted and any relevant recommendations
on whether consistency is required regarding the:
◦◦ Document to be provided pursuant to section 7,
◦◦ Retention of information to which the O.Reg. 58/16 applies, and
◦◦ Establishment of age groups and racialized groups for the purpose of section 14
h. Whether there are any challenges, operational or otherwise, in applying the regula-
tion and, if so, any recommendations regarding how they could be addressed

i. Whether the accountability and oversight mechanisms in O.Reg. 58/16 are appro-
priate to ensure compliance with the regulation and, if not, recommend how they
could be improved, and

j. Any potential regulatory amendments, policy and/or procedural changes recom-

mended to improve the implementation of the regulation.

1.2 Consultation and Review Process

In conducting the review, the Independent Reviewer

a. will determine the method, content and extent of consultations required to fulfill
his mandate
 Appendix B • Order in Council and Terms of Reference 243

b. may request any person to provide information or records to him

c. shall seek input from the Minister Responsible for Anti-Racism

d. shall seek input from the Independent Police Review Director regarding com-
plaints related to O. Reg 58/16

e. shall conduct, or cause to be conducted, an independent survey of civilians and

corresponding data collection and data analysis, in order to inform his review of
whether police officers and chiefs of police are in compliance with the limitations
on the collection of certain information pursuant to section 5 and the duties relat-
ing to the collection of information pursuant to sections 6-8

f. shall review relevant human rights law, including anti-discrimination law, and law
on arbitrary detention

g. may undertake such further inquiries as the Independent Reviewer, in his discre-
tion, deems appropriate

1.3 Interim Reporting

The Independent Reviewer may provide any interim reports to the Minister outlining:

a. The status of the review

b. Work that is completed, in progress and outstanding
c. Risks or issues that are anticipated to or will impact the completion of the review
or
d. Any findings that he or she recommends be acted on before the end of the review

1.4 Final Report and Recommendations

The Independent Reviewer shall deliver a final report to the Minister on matters identi-
fied in section 1.1 of this Terms of Reference.

The Independent Reviewer’s report shall take into account engagement with community
groups, police services and other stakeholders as well as input received from the Minister
Responsible for Anti-Racism.

The Independent Reviewer shall deliver the report and recommendations to the Minis-
ter of Community Safety and Correctional Services by November 30, 2018, so that the
Minister may publish the findings of the review by January 1, 2019 as required by the
regulation.
244 The Independent Street Checks Review

1.5 Other
The Independent Reviewer shall perform his or her duties without expressing any con-
clusion or recommendation regarding potential disciplinary matters involving any person
or the civil or criminal liability of any person or organization, and without interfering in
any ongoing criminal, civil or other legal proceeding.

2. Publication
The Independent Reviewer shall ensure that the reports and recommendations referred
to in section 1 are in a form appropriate for public release, consistent with the require-
ments of the Freedom of Information and Protection of Privacy Act and other applicable
legislation. The Independent Reviewer shall also ensure that the reports are delivered to
the minister in English and French at the same time, in electronic and printed forms.
Compliance with these requirements will be supported by the ministry, at the discretion
of the Independent Reviewer.

3. Property Rights and Confidentiality

The ministry shall be the sole owner of the reports and recommendations developed in
accordance with section 1. The Independent Reviewer shall ensure that all reports and
recommendations include a copyright notice in the following form: “© Queen’s Printer
for Ontario,” followed by the year of publication.

Any notes, records, recollections, statements made to, and documents produced by the
Independent Reviewer or provided to him in the course of the review, will be confidential.
The disclosure of such information to Ontario or any other person shall be within the sole
and exclusive discretion of the Independent Reviewer.

4. Resources
a. Within a budget approved by the ministry, the Independent Reviewer may retain
such counsel, staff, or expertise he considers necessary in the performance of his
duties at reasonable remuneration approved by the ministry, including any experts
on data collection and analysis

b. The Independent Reviewer and his staff shall be reimbursed for reasonable expens-
es incurred in connection with their duties in accordance with Management Board
of Cabinet Directives and Guidelines

c. The Independent Reviewer shall follow Management Board of Cabinet Directives

and Guidelines and other applicable government policies in obtaining other servi-
ces and goods he considers necessary in the performance of his duties unless, in his
view, it is not possible to follow them
 Appendix B • Order in Council and Terms of Reference 245

d. The ministry shall, in consultation with the Independent Reviewer, set a budget for
the fulfillment of his mandate

e. All ministries and all agencies, boards and commissions of the Government of On-
tario shall, subject to any privilege or other legal restrictions, assist the Independ-
ent Reviewer to the fullest extent possible so that the Independent Reviewer may
carry out his duties and they shall respect the independence of the review

f. All police forces, members of a police force, police officers, and municipal police
services boards in Ontario should, subject to any privilege or other legal restric-
tions, assist the Independent Review to the fullest extent possible so that the In-
dependent Reviewer may carry out his duties and they shall respect the independ-
ence of the review.
 Appendix C
O. Reg 58/16: Collection of Identifying Information
in Certain Circumstances – Prohibitions and Duties

Police Services Act

ONTARIO REGULATION 58/16
COLLECTION OF IDENTIFYING INFORMATION IN CERTAIN
CIRCUMSTANCES - PROHIBITION AND DUTIES

No amendments.

This is the English version of a bilingual regulation.

CONTENTS

PART I
APPLICATION AND INTERPRETATION
1. Application — attempts to collect
2. Application — information collected
3. Non-application — person appointed under the Interprovincial Policing Act, 2009
4. Interpretation — attempt to collect identifying information
PART II
PROHIBITION — CERTAIN COLLECTIONS OF INFORMATION
5. Limitations on collection of certain information
PART III
DUTIES RELATING TO COLLECTIONS OF INFORMATION
Officer Duties
6. Duties to inform before attempting to collect information
7. Document for individual
8. Police officer must record reason and other information
Inclusion of Collected Information in Police Databases
9. Collected information in police databases
Restrictions on Performance Targets
10. Performance targets not to be used in evaluating work performance
PART IV
OTHER MATTERS
Training
11. Chiefs of police must ensure training
Policies and Procedures
12. Boards and Minister must develop policies
248 The Independent Street Checks Review

13. Chiefs of police must develop procedures

Reports, Reviews and Compliance
14. Annual report
15. Chiefs of police must review practices and report
16. Chiefs of police must make records available
17. Review of Regulation

PART I
APPLICATION AND INTERPRETATION
Application — attempts to collect

1.  (1)  This Regulation applies with respect to an attempt by a police officer to collect

identifying information about an individual from the individual, if that attempt is done for the
purpose of,

(a) inquiring into offences that have been or might be committed;

(b) inquiring into suspicious activities to detect offences; or

(c) gathering information for intelligence purposes.

(2)  Despite subsection (1), this Regulation does not apply with respect to an attempted
collection made by a police officer for the purpose of investigating an offence the officer rea-
sonably suspects has been or will be committed.

(3)  Despite subsection (1), this Regulation does not apply with respect to an attempt by
a police officer to collect identifying information from an individual if,

(a) the individual is legally required to provide the information to a police officer;

(b) the individual is under arrest or is being detained;

(c) the officer is engaged in a covert operation;

(d) the officer is executing a warrant, acting pursuant to a court order or perform-
ing related duties; or

(e) the individual from whom the officer attempts to collect information is em-
ployed in the administration of justice or is carrying out duties or providing services that are
otherwise relevant to the carrying out of the officer’s duties.
Application — information collected

2.  (1)  This Regulation applies with respect to identifying information collected on or

after January 1, 2017 as a result of an attempt to collect to which this Regulation applies.

(2)  This Regulation applies with respect to identifying information that was collected
before January 1, 2017 only as provided under paragraph 5 of subsection 12 (1) and under sub-
 Appendix C • Regulation 58/16 249

section 13 (1) in relation to that paragraph.

Non-application — person appointed under the Interprovincial Policing Act, 2009

3.  This Regulation does not apply with respect to attempts to collect information by a
person appointed as a police officer under the Interprovincial Policing Act, 2009 or with respect
to information collected by such a person.
Interpretation — attempt to collect identifying information

4.  For the purposes of this Regulation,

“attempt to collect identifying information about an individual from the individual” means attempt to
collect identifying information by asking the individual, in a face-to-face encounter, to identify himself
or herself or to provide information for the purpose of identifying the individual and includes such an
attempt whether or not identifying information is collected.
PART II
PROHIBITION — CERTAIN COLLECTIONS OF INFORMATION
Limitations on collection of certain information

5.  (1)  A police officer shall not attempt to collect identifying information about an
individual from the individual if,

(a) any part of the reason for the attempted collection is that the officer perceives
the individual to be within a particular racialized group unless,
(i) the officer is seeking a particular individual,

(ii) being within the racialized group forms part of a description of the particular
individual or is evident from a visual representation of the particular individual, and

(iii) the officer has additional information, in addition to information about the par-
ticular individual being in a racialized group, that may help to identify the individual or narrow
the description of the individual; or

(b) the attempted collection is done in an arbitrary way.

(2)  Without limiting what might constitute the additional information required under
subclause (1) (a) (iii), such information may consist of information about,

(a) the appearance of the individual, including information about the individual’s
clothing, height, weight, eye colour, hair colour or hair style;

(b) the location where the individual might be found;

(c) the type of vehicle the individual might be found in;

(d) the associates the individual might be found with; or

(e) the behaviour of the individual.

(3)  The additional information required under subclause (1) (a) (iii) may not consist
250 The Independent Street Checks Review

only of the sex of the individual, the approximate age of the individual or both.

(4)  For the purpose of clause (1) (b), an attempted collection by a police officer from
an individual is done in an arbitrary way unless the officer has a reason that the officer can
articulate that complies with all of the following:

1. The reason includes details about the individual that cause the officer to reason-
ably suspect that identifying the individual may contribute to or assist in an inquiry described in
clause 1 (1) (a) or (b) or the gathering of information described in clause 1 (1) (c).

2. The reason does not include either of the following:

i. that the individual has declined to answer a question from the officer which the
individual is not legally required to answer, or

ii. that the individual has attempted or is attempting to discontinue interaction

with the officer in circumstances in which the individual has the legal right to do so.

3. The reason is not only that the individual is present in a high crime location.

PART III
DUTIES RELATING TO COLLECTIONS OF INFORMATION
Officer Duties
Duties to inform before attempting to collect information

6.  (1)  A police officer shall not attempt to collect identifying information about an in-
dividual from the individual unless the police officer, in accordance with the procedures devel-
oped under section 13,

(a) has informed the individual that he or she is not required to provide identifying
information to the officer; and

(b) has informed the individual why the police officer is attempting to collect iden-
tifying information about the individual.

(2)  A police officer is not required to inform the individual under clause (1) (a) or (b) if
the officer has a reason to believe that informing the individual under that clause might compro-
mise the safety of an individual.

(3)  A police officer is not required to inform the individual under clause (1) (b) if the
officer has a reason to believe that informing the individual under that clause,

(a) would likely compromise an ongoing police investigation;

(b) might allow a confidential informant to be identified; or

(c) might disclose the identity of a person contrary to the law, including disclose
the identity of a young person contrary to the Youth Criminal Justice Act (Canada).
 Appendix C • Regulation 58/16 251

(4)  A reason required under subsection (2) or (3) must be a reason the police officer
can articulate and must include details relating to the particular circumstances.
Document for individual

7.  (1)  A police officer who attempts to collect identifying information about an indi-
vidual from the individual shall,

(a) offer to give the individual a document that provides a record of the attempt;
and

(b) give the individual such a document if the individual indicates that he or she
wants it.

(2)  A police officer is not required to comply with subsection (1) if the officer has a
reason to believe that continuing to interact with the individual,

(a) might compromise the safety of an individual; or

(b) might delay the officer from responding to another matter that should be re-
sponded to immediately.

(3)  A reason required under subsection (2) must be a reason the police officer can artic-
ulate and must include details relating to the particular circumstances.

(4)  The document required under subsection (1) shall contain at least the following
information:

1. The officer’s name and officer identification number and the date, time and
location of the attempted collection.

2. Information about how to contact the Independent Police Review Director.

3. An explanation that the individual can request access to information about him-
self or herself that is in the custody or under the control of a police force, under the Municipal
Freedom of Information and Protection of Privacy Act in the case of a municipal police force,
or under the Freedom of Information and Protection of Privacy Act in the case of the Ontario
Provincial Police, and information about how to contact persons to whom such a request may
be given.
Police officer must record reason and other information

8.  A police officer who attempts to collect identifying information about an individual
from the individual shall record the following:

1. The officer’s reason for the attempted collection, including the details referred
to in paragraph 1 of subsection 5 (4).

2. Whether the individual was informed as required under clauses 6 (1) (a) and (b)
or, if informing the individual under one of those clauses was not required under subsection 6
252 The Independent Street Checks Review

(2) or (3), the reason why that was not required.

3. Whether the individual was offered the document as required under clause 7
(1) (a) or, if offering the document was not required under subsection 7 (2), the reason why that
was not required.

4. Whether the individual was given the document offered under clause 7 (1) (a)
or, if giving the document was not required under clause 7 (1) (b) or subsection 7 (2), the reason
why that was not required.

5. Such other information as the chief of police requires the officer to record.

Inclusion of Collected Information in Police Databases

Collected information in police databases

9.  (1)  This section applies with respect to the inclusion, in databases under the control
of a police force, of identifying information about an individual collected by a police officer
from the individual.

(2)  The chief of police shall ensure that the requirements under this section are com-
plied with.

(3)  Access to identifying information shall be restricted in accordance with subsection

(10) unless the information may be included in a database, under this section, without limiting
the access of members of the police force.

(4)  Identifying information may be included in a database without limiting the access

of members of the police force if,

(a) the police officer who collected the information,

(i) has indicated that the attempted collection complied with section 5,

(ii) has indicated that the individual was informed as required under clauses 6 (1)
(a) and (b) or, if informing the individual under one of those clauses was not required under
subsection 6 (2) or (3), has indicated the reason why that was not required,

(iii) has indicated that the individual was offered the document as required under
clause 7 (1) (a) or, if offering the document was not required under subsection 7 (2), has indi-
cated the reason why that was not required, and

(iv) has indicated that the individual was given the document offered under clause
7 (1) (a) or, if giving the document was not required under clause 7 (1) (b) or subsection 7 (2),
has indicated the reason why that was not required; and

(b) either,
(i) the chief of police or a person designated by the chief of police has determined,
after considering the officer’s reasons for the attempted collection, including the details re-
ferred to in paragraph 1 of subsection 5 (4), that it appears that section 5 was complied with
and has ensured that clause (a) has been complied with, or
 Appendix C • Regulation 58/16 253

(ii) the database indicates that what is required under subclause (i) has not yet been
done.

(5)  The following apply if what is required under subclause (4) (b) (i) was not done
when the identifying information was included in the database:

1. The chief of police or a person designated by the chief of police shall conduct a
review, within 30 days after the information was first entered into a database under the control
of the police force, to determine, after considering the officer’s reasons for the attempted collec-
tion, including the details referred to in paragraph 1 of subsection 5 (4), whether it appears that
section 5 was complied with and whether clause (4) (a) has been complied with.

2. If it is determined that it appears that section 5 was complied with and that
clause (4) (a) has been complied with, the indication required under subclause (4) (b) (ii) may
be removed.

3. If it is not determined, before the end of the 30-day period described in para-
graph 1, that it appears that section 5 was complied with and that clause (4) (a) has been com-
plied with, the identifying information shall be retained, subject to the procedures developed
under section 13 in relation to paragraph 4 of subsection 12 (1), in a database under the control
of the police force but access to such retained information shall be restricted in accordance with
subsection (10).

(6)  At least once a year, the chief of police or a person designated by the chief of
police shall conduct detailed reviews of an appropriately sized random sample of the entries of
identifying information included in a database under subsection (4) to estimate, within a margin
of error of plus or minus 5 per cent, at a 95 per cent confidence level, whether it appears that
sections 5, 6 and 7 were complied with.

(7)  If, as a result of a detailed review under subsection (6), it is determined, with

respect to identifying information included in a database under subsection (4), that section 5, 6
or 7 was not complied with, the identifying information shall be retained, subject to the proce-
dures developed under section 13 in relation to paragraph 4 of subsection 12 (1), in a database
under the control of the police force but access to such retained information shall be restricted
in accordance with subsection (10).

(8)  The chief of police shall consider the results of the detailed reviews under subsec-
tion (6) and take such actions as the chief of police considers appropriate.

(9)  Access to identifying information shall be restricted in accordance with subsection

(10) after the fifth anniversary of the date on which the information was first entered into a data-
base under the control of the police force.

(10)  The following apply with respect to identifying information to which access must
be restricted:

1. No person may access the information without the permission of the chief of
police or a person designated by the chief of police.
254 The Independent Street Checks Review

2. A member of the police force may be permitted to access the information only
if the chief of police or a person designated by the chief of police is satisfied that access is need-
ed,

i. for the purpose of an ongoing police investigation,

ii. in connection with legal proceedings or anticipated legal proceedings,

iii. for the purpose of dealing with a complaint under Part V of the Act or for the
purpose of an investigation or inquiry under clause 25 (1) (a) of the Act,

iv. in order to prepare the annual report described in subsection 14 (1) or the report
required under section 15,

v. for the purpose of complying with a legal requirement, or

vi. for the purpose of evaluating a police officer’s performance.

Restrictions on Performance Targets

Performance targets not to be used in evaluating work performance

10.  A chief of police shall ensure that no performance target based on any of the fol-
lowing factors is used to evaluate the work performance of a police officer on his or her force:

1. The number of times, within a particular period, that the officer collects or
attempts to collect identifying information about individuals from the individuals.

2. The number of individuals from whom the officer collects or attempts to collect
identifying information within a particular period.

PART IV
OTHER MATTERS
Training
Chiefs of police must ensure training

11.  (1)  A chief of police shall ensure that every police officer on his or her police force
who attempts to collect identifying information about an individual from the individual, or who
acts as the designate of the chief of police under section 9, has successfully completed the train-
ing required under this section within the previous 36 months.

(2)  The training referred to in subsection (1) shall include training on the following
topics:

1. The right of an individual not to provide information to a police officer, the

limitations on this right and how to ensure that this right is respected.

2. The right of an individual to discontinue an interaction with a police officer, the

limitations on this right and how to avoid unlawfully psychologically detaining an individual.
 Appendix C • Regulation 58/16 255

3. Bias awareness, discrimination and racism and how to avoid bias, discrimina-
tion and racism when providing police services.

4. The rights that individuals have to access information about themselves that is
in the custody, or under the control, of a police force.

5. The initiation of interactions with members of the public.

6. This Regulation and its application.

(3)  The training referred to in subsection (1) shall be provided at the Ontario Police
College or by a trainer who has been trained, at the Ontario Police College, to provide the train-
ing referred to in subsection (1).

(4)  The training referred to in subsection (1) shall be based on a curriculum approved

by the Director of the Ontario Police College.

Policies and Procedures

Boards and Minister must develop policies

12.  (1)  A board shall develop policies regarding the following matters:

1. The document to be given to individuals under section 7.

2. The contents, in relation to matters to which this Regulation applies, of the

annual report described in subsection 14 (1).

3. The report required under section 15.

4. The retention of, access to, and disclosure of identifying information collected
on or after January 1, 2017, including the retention of identifying information collected contrary
to this Regulation.

5. The retention of, access to, and disclosure of identifying information collected
before January 1, 2017 with respect to which this Regulation would have applied had the col-
lection taken place on January 1, 2017.

(2)  The policy developed under paragraph 4 of subsection (1) shall provide that identi-
fying information collected contrary to this Regulation shall not be retained longer than is rea-
sonably necessary to ensure the information is available in the circumstances in which access
may be permitted under paragraph 2 of subsection 9 (10).

(3)  The duties imposed by subsections (1) and (2) on boards in relation to municipal
police forces apply to the Minister of Community Safety and Correctional Services in relation
to the Ontario Provincial Police.

(4)  The policies developed under this section shall be consistent with this Regulation.
Chiefs of police must develop procedures
256 The Independent Street Checks Review

13.  (1)  A chief of police shall develop procedures regarding the matters set out in sub-
section 12 (1).

(2)  The procedures developed under subsection (1) shall be consistent with this Regu-
lation and the relevant policies developed under section 12.

Reports, Reviews and Compliance

Annual report

14.  (1)  This section applies to,

(a) an annual report provided by a municipal chief of police to a board under

section 31 of Ontario Regulation 3/99 (Adequacy and Effectiveness of Police Services) made
under the Act; and

(b) the annual report provided by the Commissioner under subsection 17 (4) of the
Act.

(2)  A chief of police shall ensure that his or her annual report includes the following
information in relation to attempted collections of identifying information:

1. The number of attempted collections and the number of attempted collections

in which identifying information was collected.

2. The number of individuals from whom identifying information was collected.

3. The number of times each of the following provisions was relied upon to not
do something that would otherwise be required under subsection 6 (1):

i. subsection 6 (2),

ii. clause 6 (3) (a),

iii. clause 6 (3) (b), and

iv. clause 6 (3) (c).

4. The number of times an individual was not given a document under clause 7
(1) (b) because the individual did not indicate that they wanted it.

5. The number of times each of the following clauses was relied upon to not do
something that would otherwise be required under subsection 7 (1):

i. clause 7 (2) (a), and

ii. clause 7 (2) (b).

6. The number of attempted collections from individuals who are perceived, by a

police officer, to be within the following groups based on the sex of the individual:
 Appendix C • Regulation 58/16 257

i. male individuals, and

ii. female individuals.

7. For each age group established by the chief of police for the purpose of this
paragraph, the number of attempted collections from individuals who are perceived, by a police
officer, to be within that age group.

8. For each racialized group established by the chief of police for the purpose of
this paragraph, the number of attempted collections from individuals who are perceived, by a
police officer, to be within that racialized group.

9. A statement, based on an analysis of the information provided under this sub-

section, as to whether the collections were attempted disproportionately from individuals within
a group based on the sex of the individual, a particular age or racialized group, or a combination
of groups and if so, any additional information that the chief of police considers relevant to
explain the disproportionate attempted collections.

10. The neighbourhoods or areas where collections were attempted and the number
of attempted collections in each neighbourhood or area.

11. The number of determinations, referred to in subsection 9 (5), that section 5 or

clause 9 (4) (a) was not complied with.

12. The number of determinations, referred to in subsections 9 (6) and (7), that
section 5, 6 or 7 was not complied with.

13. The number of times members of the police force were permitted under subsec-
tion 9 (10) to access identifying information to which access must be restricted.

(3)  A chief of police shall establish age groups for the purpose of paragraph 7 of sub-
section (2).

(4)  A chief of police shall establish racialized groups for the purpose of paragraph 8
of subsection (2) and shall do so in a way that allows the information required by subsection
(2) relating to the racialized groups to be comparable to the data referred to in the following
paragraphs, as released by the Government of Canada on the basis of its most recent National
Household Survey preceding the period covered by the chief of police’s annual report:

1. For each derived visible minority group set out in the National Household Sur-
vey, the number of individuals who identified themselves as being within that group.

2. The number of individuals who claimed Aboriginal identity.

(5)  This section does not require the inclusion of information about anything that oc-
curred before January 1, 2017.
Chiefs of police must review practices and report
258 The Independent Street Checks Review

15.  (1)  If an annual report referred to in section 14 reveals that identifying informa-

tion was attempted to be collected disproportionately from individuals perceived to be within
a group or combination of groups, the chief of police shall review the practices of his or her
police force and shall prepare a report setting out the results of the review and his or her pro-
posals, if any, to address the disproportionate attempted collection of information.

(2)  A municipal chief of police shall provide his or her report to the relevant board,
and the Commissioner shall provide his or her report to the Minister of Community Safety and
Correctional Services.

(3)  When a board receives a report from a municipal chief of police under subsection
(2), and when the Minister of Community Safety and Correctional Services receives a report
from the Commissioner under subsection (2), the board or the Minister, as the case may be,

(a) shall publish the report on the Internet in a manner that makes it available to
the public free of charge and may make the report available to the public free of charge in any
other manner that the board or the Minister, as the case may be, considers appropriate; and

(b) shall consider the report and the proposals, if any, set out in the report and
consider, in the case of a board, whether to give directions under clause 31 (1) (e) of the Act
or, in the case of the Minister, whether to give directions to which the Commissioner would be
subject under subsection 17 (2) of the Act.
Chiefs of police must make records available

16.  (1)  For the purpose of carrying out a duty, or exercising a power, under clause 3
(2) (b), (d), (e) or (h) of the Act, in relation to matters to which this Regulation applies, the Min-
ister of Community Safety and Correctional Services may request a chief of police to provide
any relevant information that is in the possession or under the control of the chief of police’s
police force.

(2)  A chief of police shall comply with a request made under subsection (1) and shall
do so in the manner specified by the Minister.
Review of Regulation

17.  (1)  The Minister of Community Safety and Correctional Services shall ensure that
a review of this Regulation is conducted and that a report on the findings of the review is pub-
lished no later than January 1, 2019.
Review not by a government employee

(2)  The Minister shall ensure that the person who conducts the review is not a public
servant within the meaning of the Public Service of Ontario Act, 2006 and is not employed in
the Office of the Premier or in the office of a minister.
 Appendix C • Regulation 58/16 259

Consultation with Minister Responsible for Anti-Racism

(3)  The Minister shall ensure that the person who conducts the review consults with
the Minister Responsible for Anti-Racism.

PART V (OMITTED)
18.  Omitted (provides for coming into force of provisions of this Regulation).
 Appendix D Appendix D 261

Infographic

REGULATION APPLIES
Currently Proposed

Inquiries Intelligence Gathering Focused Inquiries and Intelligence Gathering

No reasonable suspicion No reasonable suspicion or No reasonable suspicion but objectively

but objectively suspicious suspicious conduct or suspicious conduct or potential offence or
conduct or potential potential offence required focused intelligence gathering
offence
Police can randomly Police can request ID information but not
Police can request ID request ID information randomly
information
Regulation applies if Regulation applies if request for ID
Regulation applies if request for ID information information
request for ID information
No obligation to provide ID No obligation to provide ID information
No obligation to provide ID information
information Individual is free to go
Individual is free to go
Individual is free to go

REGULATION DOES NOT APPLY

(Currently or Proposed)

Community Interactions Investigations Generally

No suspicion Reasonable suspicion that offence committed

or will be committed

Police can request ID information Police can request ID information from potential
witnesses and suspects
No obligation to provide ID information
No obligation to provide ID
information
Individual is free to go
Individual is free to go

Arrest (or Other Lawful

Investigative Detention Authorities to Request ID
Information)
Reasonable suspicion that a particular
individual committed an offence Reasonable and probable grounds (or
pre-conditions for the lawful authority)
Police can request ID information
Police can request ID information
No obligation to speak to police
Obligation to provide ID information

Individual is detained and not free to go Individual is not free to go

 Appendix E Appendix E • Civilian Survey Results 263

Civilian Survey Results

1. Under the terms of reference, a survey of civilians was required as part of this Review.
The survey was concluded on August 13, 2018. The following is a summary of the survey
results.

2. Data was collected using two different methods: an online survey and a telephone
survey. The online survey was an abbreviated version of the longer telephone interview.
Between March 19 and May 28, 2018, an online survey portal on the Independent Street
Checks Review website was used to collect responses.

3. A total of 387 respondents completed the online survey. Of those, almost one-third
were 18 to 34 years of age (32.3%), almost one-half were 35 to 54 years of age (47%) and
about one-fifth were age fifty-five or older (21.5%). In terms of race, the vast majority of
respondents reported being either white (57%) or Black (24%).

4. For the telephone survey, the Institute for Social Research (ISR) of York University
was responsible for data collection. All the surveys were conducted at ISR’s Computer
Assisted Telephone Interviewing (CATI) Lab during April, May and June 2018. ISR
uses CATI software developed at the University of California (Berkeley).

5. In the telephone survey, 50% (887/1789) of respondents reported being white only,
11% (200/1789) reported being Black, 11% (208/1789) reported being Middle Eastern,
11% (200/1789) reported being South Asian, 11% (201/1789) reported being Indigen-
ous and 3% (61/1789) identified as East Asian or other. Approximately 2% refused to
identify their race.

6. The telephone survey divided respondents into two sample groups: general popula-
tion and special populations. The general population was composed of the adult popula-
tion of Ontario, which was defined as people 18 years of age or older who speak English
and reside in private homes. The special telephone population had four sub-components:
Indigenous Peoples, Blacks, those from the Middle East and South Asians.

7. About 31% of respondents fell into the general population sample and 49% fell into
the special populations sample. Given the same interviewers called both samples, the dif-
ference suggests that special population groups had a greater interest in the survey topic
than the general population.
264 The Independent Street Checks Review

8. Calls were made to approximately 15,000 households, with 1789 people agreeing to
be interviewed by phone.

Opinions about the Police 372

9. The survey results revealed that most respondents have a positive opinion about their
local police service.

10. For example, over 90% of telephone respondents either somewhat or strongly agreed
that they “have a lot of respect for the police”. That figure dropped to about 60% among
those who completed the online survey.

11. The reason for the differences between the online survey and the phone interview
responses is not known. Perhaps people who were motivated enough to go to the In-
dependent Street Checks Review website to complete the online survey were less of a
random sample than those who consented to participate in the phone interview. It also
appears that the people who agreed to participate in the telephone survey were somewhat
skewed to higher age and income levels, which could affect the results.

12. Approximately 90% of all telephone respondents and 60% of online respondents
agreed that they trust the police (88.6% and 57.8% respectively), and 92.2 % of telephone
respondents and 61.8% of online respondents have confidence that the police are serving
the public.

13. An additional 91.9% of telephone respondents and 69.4% of online respondents

either somewhat or strongly agreed that they would go to the police for help if they had
a problem.

14. Further analysis, however, revealed that respondents are not completely positive in
their perceptions of the police.

15. For example, approximately half of the respondents – 49.6% of telephone respondents
and 41.6% of online respondents – either somewhat or strongly agreed that the police
“often abuse their power”.

16. Similarly, approximately 60% of respondents – 60.9% of telephone respondents and

57% of online respondents – either somewhat or strongly agreed that the police treat
people from some racial groups worse than people from other racial groups.

17. Overall, the results suggest that, while the majority of respondents from each racial
group expressed positive attitudes towards the police, Black and Indigenous respondents
were significantly less positive than their counterparts from other ethno-racial groups.

18. For example, over 60% of white, South Asian and Middle-Eastern telephone re-
 Appendix E • Civilian Survey Results 265

spondents strongly agreed with the statement “I trust the police”. This figure, however,
dropped to only 33.5% among Black and 38.3% among Indigenous telephone respondents
and 29.7% among Black and 44.8% among Indigenous online survey respondents.

19. Black and Indigenous respondents were also less likely to “strongly agree” that they
have confidence in the police, have a lot of respect for the police and would go to the
police for help if they have a problem.

20. The results further suggest that, compared to white, Middle-Eastern and South Asian
respondents, Black and Indigenous respondents were more likely to believe that the po-
lice often abuse their power and treat some racial groups worse than others.

21. For example, 67.5% of Black and 64.2% of Indigenous telephone respondents agreed
that the police often abuse their powers, compared to only 40.7% of white respondents.
Among online respondents, 61.3% of Black, 45.9% of other minority respondents and
31.7% of white respondents agreed that the police often abuse their powers.

22. In summary, while most people trust and have confidence in the police, Black and In-
digenous communities should be the primary focus of efforts to repair police–community
relationships.

Perceptions of Profiling
23. Among telephone survey respondents, 81.5% of Black and 65.7% of Indigenous re-
spondents agreed that the police treat people from some racial groups worse than people
from other racial groups, compared to only 55.7% of white respondents. Among online
respondents, 82.0% of Black, 73.7% of other minority and 41.1% of white respondents
agreed with that statement. These racial differences are statistically significant.

24. Overall, only 12.3% of telephone respondents either somewhat or strongly agreed
with the statement: “I have been the victim of racial profiling”. By contrast, 77.7% of re-
spondents strongly disagreed with this statement. For online respondents, 20.9% some-
what or strongly agreed, with 51.9% strongly disagreeing.

25. However, direct experiences with police profiling vary significantly by race. For ex-
ample, a third of Indigenous telephone respondents (32.8%) reported that they have
been the victim of racial profiling, compared to 22.5% of Black respondents, 19.5% of
South Asian respondents, 14.4% of Middle-Eastern respondents and only 4.0% of other
racialized respondents not captured in the aforementioned groups. Among online survey
respondents, the figures were 52.3% of Black respondents, 28.8% of other minority re-
spondents and only 5.4% of white respondents.

26. Vicarious experiences with racial profiling were more prevalent than direct experien-
266 The Independent Street Checks Review

ces. Overall, 22.3% of telephone respondents either somewhat or strongly agreed with
the statement: “My family members and friends have been the victims of racial profiling”.
By contrast, 64.3% strongly disagreed with this statement. For online respondents, the
results were 39.5% who somewhat or strongly agreed with the statement, with 51.9%
strongly disagreeing.

27. As with direct experiences, vicarious experiences with racial profiling vary significant-
ly by race. Almost half of Indigenous (49.7%) and Black telephone respondents (47.0%)
agreed that their family members and friends have been victims of racial profiling by
the police, compared to 25.5% of South Asian respondents, 23.1% of Middle-Eastern
respondents and only 10.9% of all other racialized respondents not captured in the afore-
mentioned groups. For online survey respondents, the figures were 73.8% of Black re-
spondents, 56.0% of other minority respondents and only 19.7% of white respondents.

28. Most of the respondents who had been stopped by the police in the last five years,
other than Black respondents, were unaware of the Regulation. Even among Black re-
spondents, 47.2% were unaware of the Regulation. Black and Middle Eastern individuals
reported a disproportionate number of stops. It is not surprising to find that 58.2% of
all respondents were either not sure or did not know if the Regulation was a good thing.

29. Furthermore, only 27.1% of Indigenous respondents reported that they were aware of
the Regulation, compared to close to 50% of respondents from other racial groups.

30. It should be noted that these reports extended to a time prior to the filing of the
Regulation, when carding was a more widespread practice, and are therefore somewhat
outdated.

31. The Regulation came into effect on January 1, 2017, and it is the stops that were con-
ducted after that time that will be commented on here.

Police Stops
32. With regard to the issue of whether police officers have been stopping people in dis-
proportionate numbers, the following chart indicates the percentage of people stopped
according to their racial background. Survey participants who were contacted by phone
and those who participated online are listed separately.

Percentage of Respondents who Reported a Police Stop Since January 1, 2017, by

Ethno-racial Background
White Black Middle-Eastern South Asian Indigenous
Phone 20.3% 18.5% 16.8% 16% 27.4%
Online 46.9% 46.2%
 Appendix E • Civilian Survey Results 267

33. These findings indicate that participants who completed the online survey had been
stopped more often than those who were called on the telephone. This could help to ex-
plain the different responses between the two groups for certain questions.

34. The telephone survey indicated no significant differences in frequency of police stops
between racial communities except for the Indigenous community: 27.4% of Indigenous
respondents reported a police stop, which was more than 30% higher than other com-
munities.

35. The survey also broke down the types of police stops into pedestrian, driver and pas-
senger, by ethno-racial category.

Types of Police Stops Since January 1, 2017

Pedestrian
White Black Middle-Eastern South Asian Indigenous
Phone 2.3% 2% 3.4% 1.5% 7%
Online 22.9% 25.6%
Driver
White Black Middle-Eastern South Asian Indigenous
Phone 16.2% 14.5% 11.5% 11% 14.9%
Online 60.4% 58.1%
Passenger
White Black Middle-Eastern South Asian Indigenous
Phone 3.9% 4.5% 4.8% 4% 8.5%
Online 16.7% 16.3%

36. The results for pedestrians indicate no significant disparity except for Indigenous and
Middle-Eastern people, who are stopped more often.

37. For drivers and passengers, the results are roughly equivalent but with Indigenous
people, again, subject to more passenger stops.

38. The results indicate that, since the filing of the Regulation, people generally are not
being stopped disproportionately, although Indigenous peoples are subject to a greater
number of pedestrian and passenger stops. The reason for that is subject to interpretation.
268 The Independent Street Checks Review

Compliance
39. It is difficult to determine if police officers have complied with the requirements of
the Regulation because regulated interactions must be distinguished from non-regulated
interactions. Survey participants would not know which group they fell into.

40. If a survey participant was stopped and questioned, but without being asked to pro-
vide identifying information, it is not a regulated interaction and the participant did not
have to be provided with a reason or a receipt, or be told they do not have to provide
identifying information. Similarly, if a participant was stopped as part of an investigation
where the officer reasonably suspects the possibility of an offence, the requirements of the
Regulation do not apply. It should be noted that our civilian survey indicated that almost
half of those stopped as pedestrians felt that they would get in trouble for not cooperating
with the police officer.

41. The survey results indicated the following as to whether the survey participants were
provided with a reason for their stops.

Percent Reporting a Reason was Provided for the Police Stops Since
January 1, 2017
Pedestrian Passenger Driver
Phone 58.6% 92.9% 92.5%
Online 65.9% 88.9% 90.5%

42. The results are similar for phone respondents and online respondents, with reasons
being provided much less often for pedestrian stops. Note that the Regulation did not
apply for stops of drivers if it was a proper traffic stop because the driver is legally required
to provide identifying information.

43. Survey participants were also asked if they felt the police stop was justified.

Percent Who Feel the Police Stop was Justified Since January 1, 2017
Pedestrian Passenger Driver
Phone 39.7% 70.2% 74.1%
Online 39.7% 77.3% 75.3%

44. Again the results are similar for phone respondents and online respondents, with
pedestrians much less likely to feel the stop was justified.
 Appendix E • Civilian Survey Results 269

45. The following charts provide the reasons survey respondents were given for police
stops, broken down by pedestrian, passenger and driver.

Reasons Provided for the Police Stop by Stop Type Since January 1, 2017
Pedestrian Phone Online
Random/routine 8.3% 19.5%
Fit description of a suspect 8.3% 17%
Witness to a crime 5.6% 4.9%
Acting suspicious 8.3% 2.4%
Drug/alcohol use 5.6% 2.4%
Speeding
Other traffic violation
Passenger Phone Online
Random/routine 7.7% 22.2%
Fit description of a suspect 2.6%
Witness to a crime
Acting suspicious 1.3% 3.7%
Drug/alcohol use 3.8%
Speeding 39.2% 37%
Other traffic violation 7.6% 11.1%
Driver Phone Online
Random/routine 5.7% 4.8%
Fit description of a suspect
Witness to a crime
Acting suspicious 0.4%
Drug/alcohol use 4.1% 9.5%
Speeding 46.7% 40.9%
Other traffic violation 13% 20%
270 The Independent Street Checks Review

46. For most categories the reasons provided, if they were objectively and credibly sup-
ported at the time, would justify a police stop. However the category of “random or
routine” is not a proper explanation of a police stop, unless it was for something like a
R.I.D.E. program.

47. It should be noted that online participants subject to a pedestrian or passenger stop
were told it was a random or routine stop about two to three times more often than phone
participants.

48. The survey asked participants if the police officer requested their identification.

Asked for Identification by Type of Stop Since January 1, 2017

Pedestrian Passenger Driver
Phone 17.5% 23% 88%
Online 34% 45% 94.3%

49. This question is relevant to whether the Regulation applied to the stop. Most re-
spondents other than drivers were not asked for identification, meaning that most of the
stops would not have been regulated interactions. Even if the participants were asked for
their identification, it could have been part of an investigation and, again, the Regulation
would not have applied. For drivers, the Regulation would not have applied in most
situations.

50. Survey participants were also asked if they were provided with a receipt after they
were stopped.

Issued Receipt by Type of Stop Since January 1, 2017

Pedestrian Passenger Driver
Phone 5.2% 373 16.7%374 17% 375
Online 12% 11% 11.4%

51. A low percentage of respondents were given receipts. This could be due to the fact
that most of the reported stops were not regulated interactions.

52. The next question that was asked was whether people were told that they did not have
to answer the police officer’s questions.
 Appendix E • Civilian Survey Results 271

Told not required to Answer Questions Since January 1, 2017

Pedestrian Passenger Driver
Phone 8.6% 16.7% 3.8%
Online 22.6% 10.5% 4.5%

53. The Regulation requires that people only be told that they do not have to provide
identifying information, as opposed to being told they do not have to answer questions.
In any event, a low percentage of people were told they did not have to answer questions.

54. The survey participants were asked if they were questioned during police stops.

Questioned During Police Stops Since January 1, 2017

Pedestrian Passenger Driver
Phone 96.6% 25% 100%

55. The following charts indicate the types of questions that survey participants were
asked during the police stops, again broken down by pedestrian, passenger and driver.

Types of Questions Asked During Police Stops, since January 1, 2017

Pedestrian Phone Online
Asked for ID 19.3%
Asked for phone number 1.8% 9.8%
Asked how you knew others 3.5% 17%
Asked where going or doing 38.6% 46.3%
Asked where you live 12.3% 51.2%
Where you came from 15.8% 26.8%
Citizenship/immigration status 4.9%
Asked age 1.8% 9.6%
Passenger Phone Online
Asked for ID 16.7%
272 The Independent Street Checks Review

Types of Questions Asked During Police Stops, since January 1, 2017

Asked for phone number 1.3%
Asked how you knew others 2.5% 14.8%
Asked where going or doing 21.3% 18.5%
Asked where you live 8.8% 3.7%
Where you came from 10% 7.4%
Citizenship/immigration status
Asked age 2.5% 3.7%
Driver Phone Online
Asked for ID 88%
Asked for phone number 4.9% 0.9%
Asked how you knew others 0.9% 8.6%
Asked where going or doing 24.6% 48.5%
Asked where you live 4% 30.5%
Where you came from 7.2% 24.7%
Citizenship/immigration status 0.4%
Asked age 3.8%

56. The types of questions that survey participants were asked indicates the problem de-
termining whether the Regulation would apply. Clearly asking a person their identifica-
tion, address or phone number constitutes asking a person for their identifying informa-
tion. Asking a person how they know others or where they are coming from or going falls
into a grey area. Asking what a person is doing – which is the most frequent category for
pedestrian stops – is not something that would be covered by the Regulation.

57. The following figures list the number of people who reported that they were subjected
to a more intrusive procedure in a police stop, again broken down by category.
 Appendix E • Civilian Survey Results 273

Frequency of Police Actions During Police Stops Since January 1, 2017

Pedestrian Phone Online
Searched or patted down 9 5
Empty pockets or searched bag 13 6
No force used 46 26
Held down 6 2
Handcuffed 4 2
Hit me 2 1
Threatened force 3 3
Searched vehicle
Passenger Phone Online
Searched or patted down 9 1
Empty pockets or searched bag
No force used 82 21
Held down 2
Handcuffed 2
Hit me 1
Threatened force 2
Searched vehicle 11
Driver Phone Online
Searched or patted down 1
Empty pockets or searched bag
No force used 166 84
Held down
Handcuffed 1
Hit me
Tasered
Threatened force 1
Searched vehicle 9 2
274 The Independent Street Checks Review

58. These figures indicate the number of people who reported these activities. It is pos-
sible that the same person was threatened with force, searched, held down and then
handcuffed.

59. The following charts indicate the outcomes of the police stops.

Outcomes of Stops Since January 1, 2017

Pedestrian Phone Online
Ticket 1.9% 10%
Warning 15.7% 10%
Arrest 1.9% 3.3%
Nothing Happened 80.4% 76.7%
Passenger Phone Online
Ticket 42.1% 10%
Warning 31.6% 10%
Arrest 3.3%
Nothing Happened 26.3% 76.2%
Driver Phone Online
Ticket 44.8% 30%
Warning 26.4% 46.7%
Arrest 1.2% 1.1%
Nothing Happened 27.6% 22.2%

60. The fact that some of the people stopped were arrested indicates that the stop may
have been justified. Similarly, most of the drivers stopped were either ticketed or given a
warning, indicating that there was some traffic infraction involved.

61. Among people stopped when driving, 72.4% of phone respondents and 77.8% of
online respondents were given a ticket, warning or were arrested. This roughly correlates
to the survey results regarding the perception that the stop was justified, with 74.1%
(phone) and 75.3% (online) of the drivers reporting the stop as justified.
 Appendix E • Civilian Survey Results 275

62. In summary, while most people trust and have confidence in the police, the figures are
much lower for Black and Indigenous communities. It appears that since the Regulation
came into effect, police officers have been stopping people without discrimination – with
the potential exception of members of the Indigenous community who, in some cases,
were stopped 30% more often than members of other communities. Police officers have
been advising some people why they were stopped and that they do not have to answer
questions, and then providing the person with a receipt. Without being able to know
if the interaction was a regulated interaction, it is impossible to tell if police officers are
fully complying with the Regulation. Given the lack of awareness on the part of survey
respondents about the Regulation, it is important to create and deliver targeted education
programs for Indigenous, Black and other racialized communities on the Regulation and
its application.
 Notes Notes 277

1. Brian A. Garner, ed, Black’s Law Dictionary, 8th ed (St. Paul, Minnesota: Thomson West, 2004) sub
verbo “arbitrary”.
2. Ibid sub verbo “investigative detention”.
3. “Random”, online: Merriam-Webster Dictionary <https://www.merriam-webster.com/dictionary/ran-
dom?utm_campaign=sd&utm_medium=serp&utm_source=jsonld>.
4. R v Roberts, 2015 ONSC 7974 at para 9.
5. R v Guindon, 2015 ONSC 4028 at para 5 citing R v Brown, 2008 SCC 18, [2008] 1 SCR 456
[Brown SCC].
6. R v Chaudhry, 2016 ONCJ 56 at para 31.
7. “Unconscious Bias” online: University of California, San Francisco, Diversity and Outreach <https://
diversity.ucsf.edu/resources/unconscious-bias>.
8. Michael Shiner and Rebekah Delsol, “The Politics of Powers” in Rebekah Delsol and Michael Shin-
er, eds, Stop and Search: The Anatomy of a Police Power (London, UK: Palgrave MacMillan, 2015) 31 at 52.
9. Sir Robert Peel, Sir Robert Peel’s Principles of Law Enforcement (1829) online: <https://www.durham.
police.uk/About-Us/Documents/Peels_Principles_Of_Law_Enforcement.pdf>.
10. “The little-told history of Canadians as slave owners, not just slave rescuers”, CBC Radio (8
December 2017), online: <http://www.cbc.ca/radio/thesundayedition/the-sunday-edition-decem-
ber-10-2017-1.4439351/the-little-told-history-of-canadians-as-slave-owners-not-just-slave-rescu-
ers-1.4439365>.
11. The Royal Commission on Aboriginal Peoples, “Highlights of the Report of the Royal Commission
on Aboriginal Peoples” (1996) online: <https://www.aadnc-aandc.gc.ca/eng/1100100014597/110010001
4637>; Stephanie Cram “Dark history of Canada’s First Nations pass system uncovered in documentary”
CBC News (19 February 2016), online: <http://www.cbc.ca/news/aboriginal/dark-history-canada-s-pass-
system-1.3454022>.
12. Ibid.
13. Gregory S. Kealey, Spying on Canadians: The Royal Canadian Mounted Police Security Service and the
Origins of the Long Cold War (Toronto, ON: University of Toronto Press, 2017) at 169.
14. Ibid.
15. Ibid.
16. Ibid.
17. Toronto Police Service, “Brief History of the Toronto Police Service” (last visited 5 September
2018), online: <http://www.torontopolice.on.ca/careers/history.php>.
18. Lila MacLellan, “Toronto Police controversy: What is ‘carding’ and is it legal?” Daily Brew (6 May
2015), online: <https://ca.news.yahoo.com/blogs/dailybrew/toronto-police-controversy--what-is--card-
ing--and-is-it-legal-192840113.html>.
19. Paul Socka, “Police Carding: Highly Unlikely to Satisfy Charter Standards for Consent Searches” in
Don Stuart, ed, Criminal Reports, 7th ed (Canada: Thomson Reuters, 2017) at para 4.
278 The Independent Street Checks Review

20. Jim Rankin, “How the cards have played out since 1957” Toronto Star (26 May 2015), online:
<https://www.thestar.com/news/gta/2015/05/26/how-the-cards-have-played-out-since-1957.html>.
21. Chris Herhalt, “Carding ‘a valuable tool’ if done right, new chief says” (21 May 2015), CP24 online:
<https://www.cp24.com/news/carding-a-valuable-tool-if-done-right-new-chief-says-1.2384556>.
22. Roger Rowe, Allegations of profiling: how much disclosure of investigative records is appropriate? (de-
livered at The Canadian Institute’s 2nd Annual Conference on the Law of Policing: Navigating the
Changing Landscape of Oversight, Discipline & Civil Liability, 2011) [unpublished] at 1.
23. “TAVIS formed in response to Summer of the Gun”, City Centre Mirror (29 August 2012) online:
<https://www.toronto.com/news-story/1309426-tavis-formed-in-response-to-summer-of-the-gun/>;
Christie Blatchford, “Mother of shot boy: ‘You have to thank God he’s alive’”, The Globe and Mail (22
April 2018) online: <https://www.theglobeandmail.com/news/national/mother-of-shot-boy-you-have-
to-thank-god-hes-alive/article22506001/>; Joe Friesen “Slaying victim locked herself out of car, mother
recalls” The Globe and Mail (22 April 2018) online: <https://www.theglobeandmail.com/news/national/
slaying-victim-locked-herself-out-of-car-mother-recalls/article18221862/>.
24. Peel, supra note 9.
25. In Brown v Durham Regional Police Force (1998), 131 CCC (3d) 1 (ONCA) at paras 67 and 79
[Brown v Durham], leave to appeal granted (1999), 252 NR 198 (note), 133 OAC 200 (note) (SCC),
Doherty J.A. noted:
Proactive policing is in many ways more efficient and effective than reactive policing. Where pro-
active steps do not collide with individual rights, that increased efficiency and effectiveness comes at
no constitutional cost. Even where there is interference with individual rights, the societal gains are
sometimes worth the interference. This is most often the case where the proactive measures are taken
in the context of a regulatory scheme such as the Highway Traff ic Act. The justification under
s. 1 of the Charter for the arbitrary detention allowed by s. 216(1) of the HTA is premised on the
realization that preventative steps taken by the police, including ones which interfere with individual
liberties, are essential to the maintenance of an acceptable level of safety on public thoroughfares. It
must be stressed, however, that the individual rights which are interfered with when the police act
proactively in a regulated area are qualified rights (e.g. the” right” to drive). It is easier to justify state
interference with a qualified right than it is to justify interference with conduct which is not subject
to government regulation. The respondent’s claim that the detentions were authorized under the
common law ancillary doctrine in no way depends on the appellants’ status as motorists at the time of
the detention. On this argument, the appellants could have been stopped if they were merely walking
down the road.
…
The balance struck between common law police powers and individual liberties puts a premium on
individual freedom and makes crime prevention and peacekeeping more difficult for the police. In
some situations, the requirement that there must be a real risk of imminent harm before the police can
interfere with individual rights will leave the police powerless to prevent crime. The efficacy of laws
controlling the relationship between the police and the individual is not, however, measured only from
the perspective of crime control and public safety. We want to be safe, but we need to be free.
26. Rebekah Delsol, “Effectiveness” in Delsol and Shiner, supra note 8, 79 at 83; Michael D White and
Henry F Fradella, Stop and Frisk, The Use and Abuse of a Controversial Policing Tactic (New York, NY: New
York University Press, 2016) at 169.
27. White and Fradella, supra note 26 at 2-3, 81-82, 85, 92-93, 96-99, 182-183 and 188.
28. The police stops are simply one aspect of a greater strategy of focused deterrence or “pulling levers”
 Notes 279

programs of policing where specific known and generally dangerous offenders are informed that they will
be subject to greater scrutiny.
29. Douglas Murray “In London, Homicides Spike, and Politicians Do a U-Turn on Stop-and-Search”,
National Review (9 April 2018) online: <https://www.nationalreview.com/2018/04/in-london-homi-
cides-spike-and-politicians-do-a-u-turn-on-stop-and-search/>.
30. Ben Bradford, Stop and Search and Police Legitimacy (Milton Park, Abingdon, Oxon: Routledge,
2016) at 60 [Bradford, Police Legitimacy].
31. Christie Blatchford, “Controversial ‘carding’ practice is an invaluable source of intelligence for police,
if done right”, National Post (5 June 2015) online: <http://nationalpost.com/opinion/christie-blatchford-
controversial-carding-practice-is-an-invaluable-source-of-intelligence-for-police-if-done-right>.
32. Elizabeth Comack, Racialized Policing: Aboriginal People’s Encounters with the Police (Winnipeg, MN:
Fernwood Publishing Company Limited, 2012) at 63 as cited in Christina Abbott, Street Checks and Can-
adian Youth: A Critical Legal Analysis (Master of Laws, University of Saskatchewan, 2017) [unpublished]
at 18 online: <https://ecommons.usask.ca/handle/10388/8098>.
33. Bradford, Police Legitimacy, supra note 30 at 24.
34. Abigail Sewell & Kevin A. Jefferson, “Collateral Damage: The Health Effects of Invasive Police
Encounters in New York City” (2016) 93 Suppl 1 J Urban Health 42-67 online: <https://www.ncbi.
nlm.nih.gov/pmc/articles/PMC4824697/>. See also Kwame McKenzie, “Carding amplifies racism,
decreases health” (10 June 2015), online (blog): Wellesley Institute <http://www.wellesleyinstitute.com/
healthy-communities/carding-amplifies-racism/>.
35. Minutes of the meeting of the Toronto Police Services Board (15 December 2005) at 149 online:
<http://www.tpsb.ca/component/jdownloads/send/18-2005/295-05dec15pmm>.
36. Selena Ross, “Somali-Canadian woman sues federal government over loss of security clearance
at Pearson Airport” The Globe and Mail (8 January 2016, updated 16 May 2016) online: <https://www.
theglobeandmail.com/news/toronto/somali-canadian-woman-sues-federal-government-over-loss-of-sec-
urity-clearance-at-pearson-airport/article28094332/>.
37. Alyshah Hasham, “Judge slams Transport Canada for revoking airline worker’s security clear-
ance” Toronto Star (16 August 2016) online: <https://www.thestar.com/news/crime/2016/08/16/
judge-slams-transport-canada-for-revoking-airline-workers-security-clearance.html>.
38. Jim Rankin “Award-winning law student denied cop ride-along – despite no criminal record” Toron-
to Star (28 June 2016) online: <https://www.thestar.com/news/gta/2016/06/28/lawyer-activist-denied-
cop-ride-along-launches-dual-complaints.html>.
39. Patty Winsa, “Toronto resident Knia Singh launches Charter challenge to police carding” Toronto
Star (10 June 2015) online: <http://www.thestar.com/news/gta/2015/06/10/toronto-resident-knia-
singh-launches-charter-challenge-to-police-carding.html>; Jim Rankin “Excuse me officer, why are you
stopping me?” Toronto Star (27 September 2013) online: <https://www.thestar.com/news/gta/knowntopo-
lice2013/2013/09/27/excuse_me_officer_why_are_you_stopping_me.html>; and idid.
40. SM v Toronto Police Services Board, 2008 ONCJ 579 at 15-16.
41. R v Ferdinand, 2004 CarswellOnt 3150 (SCJ) [Ferdinand]; R v Fountain, 2015 ONCA 354 [Foun-
tain]; Elmardy v Toronto Police Services Board, 2017 ONSC 2074, 136 OR (3d) 483 (Div Ct).
42. R v S (RD), [1997] 3 SCR 484 [S (RD)]; see also R v Spence, [2005] 3 SCR 458 [Spence], at para 32.
43. See eg The Honourable Roy McMurtry and Alvin Curling, Review of the Roots of Youth Violence,
vol 1 (Toronto, ON: Queen’s Printer for Ontario, 2008) at ch 4, online: <http://www.children.gov.on.ca/
htdocs/English/professionals/oyap/roots/volume1/chapter04_rootsrisk.aspx> (those groups reported
280 The Independent Street Checks Review

aggressive police tactics including stops and questioning which were perceived to be initiated on the basis
of race, and which interactions were considered to be a contributor to youth violence).
44. Patty Winsa, “Likelihood of being stopped if you’re Black increases halfway through 2013” Toronto
Star (25 July 2014) online: <https://www.thestar.com/news/insight/2014/07/25/likelihood_of_being_
stopped_higher_if_youre_Black.html>.
45. Scot Wortley and Lysandra Marshall, Bias Free Policing: The Kingston Police Stop Data Collection Pilot
Project Final Results (Kingston, ON: Kingston Police Services Board, 2005) online: <http://hdl.handle.
net/1974/8655>.
46. Ottawa Police Service, “Traffic Stop Race Data Collection Project (TSRDCP)”, online: Ottawa
Police Service <https://www.ottawapolice.ca/en/news-and-community/Traffic-Stop-Race-Data-Collec-
tion-ProjectTSRDCP.asp>. See also Ontario Human Rights Commission, “OHRC Response to the
Race Data and Traffic Stops in Ottawa Report” (28 November 2016) at Ch. 5, online: Ontario Human
Rights Commission <http://www.ohrc.on.ca/en/ohrc-response-race-data-and-traffic-stops-ottawa-re-
port/5-context-report-findings> [OHRC, “Traffic Stops in Ottawa”] (it should be noted that both
Ottawa Police Service and Kingston Police Service implemented measures to promote bias-free policing
following these studies).
47. San Grewal, “Blacks three times more likely to be carded by Peel police than whites” Toronto Star (24
September 2015) online: <https://www.thestar.com/news/gta/2015/09/24/blacks-three-times-more-like-
ly-to-be-carded-by-peel-police-than-whites.html >.
48. Shaamini Yogaretnam, “Street checks data about racialized men concerning to civil liberties advo-
cates” Ottawa Citizen (26 July 2015) online: <http://ottawacitizen.com/news/local-news/street-checks-
data-about-racialized-men-concerning-to-civil-liberties-advocates>.
49. The Black Experience Project in the GTA: Overview Report, (Toronto: July 2017) at 47, online (pdf ):
<http://s3.documentcloud.org/documents/3897161/Black-Experience-Project.pdf>.
50. See eg OHRC, “Traffic Stops in Ottawa”, supra note 46.
51. R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant] at para 39.
52. Bradford, Police Legitimacy, supra note 30 at 46.
53. Race Relations and Policing Task Force, The Report of the Race Relations and Policing Task
Force (Toronto, ON: 1989) at 23.
54. Scot Wortley and Akwasi Owusu-Bempah, “The usual suspects: police stop and search practices in
Canada” in Leanne Weber and Ben Bowling, eds, Stop and Search: Police Power in Global Context (Oxton,
UK: Routledge, 2013) 43 at 51 [Wortley and Owusu-Bempah, “The usual suspects”]. Also see Toronto
Police Service, The Police and Community Engagement Review (The PACER Report) (Toronto, ON: Toronto
Police Service, 2013) online: <http://www.torontopolice.on.ca/publications/files/reports/2013pacerreport.
pdf> [PACER]; Neil Price “This Issue has been With Us for Ages”: A Community-Based Assessment of Police
Contact Carding in 31 Division, Final Report, (Toronto, ON: Logical Outcomes, 2014) online: <https://
www.publicsafety.gc.ca/lbrr/archives/cnmcs-plcng/cn000043559042-eng.pdf> [Logical Outcomes Report].
55. Ben Bradford, “Unintended Consequences” in Delsol and Shiner, supra note 8, 102 at 112 [Bradford,
“Unintended Consequences”]; White and Fradella, supra note 26 at 158.
56. Ontario Human Rights Commission, Paying The Price: The Human Cost of Racial Profiling (Toronto,
ON: 2003) at 29, online (pdf ): <http://www.ohrc.on.ca/sites/default/files/attachments/Paying_the_
price%3A_The_human_cost_of_racial_profiling.pdf>; see also Abbott, supra note 32 at 25.
57. Bradford, “Unintended Consequences”, supra note 55 at 117; Bradford, Police Legitimacy, supra note
30 at 176; Wortley and Owusu-Bempah, “The usual suspects” supra note 54 at 51; Ben Bowling and
 Notes 281

Leanne Webber, “Stop and search in global context: an overview” in Weber and Bowling, supra note 54,
128 at 133.
58. Scot Wortley and Akwasi Owusu-Bempah, “Criminal Justice and the Experience of Blacks in
Canada” in Barbara Perry, eds, Diversity, Crime, and Justice in Canada (New York: Oxford University
Press, 2011) Ch8-1, online: <http://www.academia.edu/535442/Crime_and_Justice_The_Experien-
ces_of_Black_Canadians>.
59. Scot Wortley and Julian Tanner, “Respect, Friendship, and Racial Injustice: Justifying Gang Mem-
bership in a Canadian City” in Frank van Gemert, Dana Peterson, and Inger-Lise Lien, eds, Street Gangs,
Migration and Ethnicity (London, UK: William Publishing, 2008) 192-208.
60. McMurtry and Curling, supra note 43 at ch 4.
61. PACER, supra note 54.
62. Logical Outcomes Report, supra note 54.
63. Collection of Identifying Information in Certain Circumstances – Prohibition and Duties, O Reg 58/16
[Regulation 58/16], under the Police Services Act, RSO 1990, c P-15.
64. As noted above, one problem in this area has been the lack of definition of key terms such as “street
check”. Some police services now refer to street checks as being synonymous with regulated interactions.
Other police services refer to street checks as being either regulated street checks (ie a regulated inter-
action) or non-regulated street checks (eg a request is made for identifying information in circumstances
under which the Regulation does not apply).
65. General, O Reg 268/10, Schedule, Code of Conduct, ss 2(g)(i.1) and (iii) [Regulation 268/10].
66. See the draft at “Ontario’s Regulatory Registry” (October 28, 2015), online: Service Ontario <http://
www.ontariocanada.com/registry/view.do?postingId=20202>.
67. Regulation 58/16, supra note 63, s 17.
68. On January 1, 2020, the Office of the Independent Police Review Director will be renamed the On-
tario Policing Complaints Agency, headed by the Ontario Policing Complaints Director, if the Policing
Oversight Act, 2018, SO 2018, Schedule 2, s 42 is proclaimed in force.
69. R v Mann, 2004 SCC 52, [2004] 3 SCR 59 [Mann] at para 15.
70. Figueiras v Toronto (Police Services Board), 2015 ONCA 208 [Figueiras] at para 66.
71. Mann, supra note 69 at para 1.
72. Ferdinand, supra note 41 at para 54.
73. R v Grafe (1987), 36 CCC (3d) 267 (ONCA) [Grafe].
74. R v Esposito (1985), 24 CCC (3d) 88 (ONCA) [Esposito] at para 15; R v Dedman, [1985] 2 SCR 2
[Dedman] at para 13, citing Martin JA in the decision below, (1981), 32 OR (2d) 641 (ONCA) at 653.
75. Respectively, these require reasonable grounds to believe and reasonable grounds to suspect the indi-
vidual has committed a criminal offence.
76. Grant, supra note 51 at para 20; R v Gonzales, 2017 ONCA 543 [Gonzales] at para 51.
77. Grant, supra note 51 at para 20.
78. Canadian Charter of Rights and Freedoms, s 10, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (UK), 1982, c 11 [Charter]. Section 10 reads as follows: 
Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
282 The Independent Street Checks Review

(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the
detention is not lawful.
79. R v Hebert, [1990] 2 SCR 151; R v Singh, 2007 SCC 48, [2007] 3 SCR 405. The Charter, supra note
78 at s 7 provides that “everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental justice”.
80. Mann, supra note 69 at para 20; R v Clayton, 2007 SCC 32, [2007] 2 SCR 725 [Clayton] at paras 20
and 21; Gonzales, supra note 76 at para 52.
81. R v Hufsky, [1988] 1 SCR 621 [Hufsky] at para 13.
82. R v Simpson (1993), 12 OR (3d) 182 (CA) [Simpson] at para 15.
83. R v Sieben, 1989 ABCA 258, 51 CCC (3d) 343; R v Cayer (1988), 66 CR (3d) 30 (ONCA), as
cited in R v Griffiths, 2003 CarswellOnt 1378 (CJ) [Griffiths] at para 18.
84. Charter, supra note 78, s 15 reads as follows:
Every individual is equal before and under the law and has the right to the equal protection and equal
benefit of the law without discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical disability.
85. Human Rights Code, RSO 1990, c H19, s 1 provides:
Every person has a right to equal treatment with respect to services, goods and facilities, without
discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex,
sexual orientation, gender identity, gender expression, age, marital status, family status or disability. 
86. The Police Services Act, 2018, SO 2018, c 3, Schedule 1 is scheduled to be proclaimed in force on
January 1, 2020. Section 10 requires police services boards and the O.P.P. Commissioner, and subsection
12(1) requires the policing provider, to provide adequate and effective policing, which is defined in section
11 to include complying with the requirements of the Charter, supra note 78 and the Human Rights Code,
supra note 85.
87. Phipps v Toronto Police Services Board, 2010 ONSC 3884 at para 91, aff ’d 2012 ONCA 155 at
para 42.
88. SO 2017, c 15 [Anti-Racism Act]. The Preamble states:
Everyone deserves to be treated with fairness, respect and dignity, and the Government of Ontario is
committed to eliminating systemic racism and advancing racial equity.
Systemic racism is a persistent reality in Ontario, preventing many from fully participating in society
and denying them equal rights, freedoms, respect and dignity.
Systemic racism is often caused by policies, practices and procedures that appear neutral but have the
effect of disadvantaging racialized groups. It can be perpetuated by a failure to identify and monitor
racial disparities and inequities and to take remedial action.
Systemic racism is experienced in different ways by different racialized groups. For example, an-
ti-Indigenous racism, anti-Black racism, antisemitism and Islamophobia reflect histories of systemic
exclusion, displacement and marginalization.
Eliminating systemic racism and advancing racial equity supports the social, economic and cultural
development of society as a whole, and everyone benefits when individuals and communities are no
longer marginalized.
89. Anti-Racism Act, supra note 88, s 2.
 Notes 283

90. Mann, supra note 69 at para 15; Gonzales, supra note 76 at para 51.
91. Supra note 63.
92. Subsections 42(1) and (3) of the Police Services Act, supra note 63, provide:
42. (1) The duties of a police officer include,
(a) preserving the peace;
(b) preventing crimes and other offences and providing assistance and encouragement to other
persons in their prevention;
(c) assisting victims of crime;
(d) apprehending criminals and other offenders and others who may lawfully be taken into cus-
tody;
(e) laying charges and participating in prosecutions;
(f ) executing warrants that are to be executed by police officers and performing related duties;
(g) performing the lawful duties that the chief of police assigns;
(h) in the case of a municipal police force and in the case of an agreement under section 10 (agree-
ment for provision of police services by O.P.P.), enforcing municipal by-laws;
(i) completing the prescribed training. 
(3) A police officer has the powers and duties ascribed to a constable at common law.
These duties will be expanded on January 1, 2020, if section 110 of the Police Services Act, 2018, supra
note 86, is proclaimed in force.
93. Police Services Act, supra note 63, s 1: Declaration of Principles
1. Police services shall be provided throughout Ontario in accordance with the following principles:
1. The need to ensure the safety and security of all persons and property in Ontario.
2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of
Rights and Freedoms and the Human Rights Code.
3. The need for co-operation between the providers of police services and the communities they
serve.
4. The importance of respect for victims of crime and understanding of their needs.
5. The need for sensitivity to the pluralistic, multiracial and multicultural character of Ontario
society.
6. The need to ensure that police forces are representative of the communities they serve. 
These principles will be expanded on January 1, 2020, if section 1 of the Police Services Act, 2018, supra
note 86, is proclaimed in force.
94. Dedman, supra note 74 at para 69.
95. Brown SCC, supra note 5 at para 52 citing the test in R v Waterfield, [1963] 3 All ER 659 (CA)
[Waterfield].
96. Mann, supra note 69 at para 35; see also Clayton, supra note 80.
97. Mann, supra note 69 at para 35.
98. Simpson, supra note 82 at 194.
99. Ibid at 194.
284 The Independent Street Checks Review

100. Mann, supra note 69 at para 35.

101. Clayton, supra note 80 at para 68.
102. Mann, supra note 69 at para 1.
103. Criminal Code, RSC 1985, c C-46, ss 495(1)(a) and (b).
104. Controlled Drugs and Substances Act, SC 1996, c 19.
105. Criminal Code, supra note 103, s 487.01 and 487.05.
106. Police Services Act, supra note 63; Aeronautics Act, RSC 1985, c A-2, and associated regulations.
107. Figueiras, supra note 70 at para 58.
108. RSO 1990, c T21 [Trespass to Property Act].
109. Ibid, s 9.
110. Ibid, ss 2.1(a)(i) and (ii).
111. Ibid, s 10.
112. R v Davidson, 2010 ONSC 1508 [Davidson] at paras 3 and 76.
113. Dedman, supra note 74 at para 35.
114. Figueiras, supra note 70 at para 79; Brown v Durham, supra note 25 at para 77.
115. RSO 1990, c H8, ss 216(1) [Highway Traffic Act]. See also Brown v Durham, supra note 25 at para
21; R v Ladouceur, [1990] 1 SCR 1257 [Ladouceur] at para 60; Simpson, supra note 82 at para 30;
Hufsky, supra note 81 at para 16.
116. Brown v Durham, supra note 25 at para 24; Gonzales, supra note 76 at paras 55-56; Ladouceur, supra
note 115 at para 60; R v Mellenthin, [1992] 3 SCR 615 [Mellenthin] at para 32.
117. Brown v Durham, supra note 25 at paras 31, 34, 37-39, 45; Gonzales, supra note 76 at para 58.
118. Gonzales, supra note 76 at paras 69-71.
119. Simpson, supra note 82 at paras 31 and 32; Gonzales, supra note 76 at para 60.
120. Brown v Durham, supra note 25 at paras 31 and 33; Gonzales, supra note 76 at para 59. 
121. Ladouceur, supra note 115 at 1287.
122. Mellenthin, supra note 116 at para 20.
123. Charter, supra note 78, s 10.
124. R v Turcotte, 2005 SCC 50, [2005] 2 SCR 519 at para 41.
125. These circumstances include the extent to which the interference with individual liberty is necessary
to the performance of the officer’s duty, to the liberty interfered with, and to the nature and extent of the
interference: Mann, supra note 69 at para 34
126. Ibid at para 17.
127. Ibid at para 34.
128. Ibid at para 16.
129. Brown v Durham, supra note 25 at para 65.
130. R v Granston, 134 OAC 87, 146 CCC (3d) 411 (CA) [Granston] at para 36.
131. Simpson, supra note 82 at 200. See also R v Jacques, [1996] 3 SCR 312. Although the preferred
term in Canada is “reasonable grounds to detain”: Mann, supra note 69 at para 33.
 Notes 285

132. Simpson, supra note 82 at para 61.

133. Mann, supra note 69 at para 27.
134. R v Mahmood, 2011 ONCA 693 at para 114, citing Brown SCC, supra note 5 at para 75 and Simp-
son, supra note 82 at 202.
135. See eg R v Cox (1999), 132 CCC (3d) 256 (NBCA) at para 12; Mann, supra note 69 at para 35.
136. Simpson, supra note 82 at para 61.
137. R v Byfield (2005), 74 OR (3d) 206 (CA) at paras 18-20.
138. Charter, supra note 78, s 10(a). See also Mann, supra note 69 at para 21; R v Suberu, 2009 SCC 33,
[2009] 2 SCR 460 [Suberu] at para 41. However, compliance with a person’s right to counsel under sec-
tion 10(b) of the Charter cannot excuse prolonging, unduly and artificially, the person’s detention.
139. Suberu, supra note 138 at para 23.
140. Ibid at para 24.
141. Mann, supra note 69 at para 19; ibid at paras 3 and 23.
142. Grafe, supra note 73 at para 9; R v Hall (1995), 22 OR (3d) 289 (CA) at para 26; R v Bullock, 2000
CarswellOnt 736 (SCJ) at para 9.
143. Mann, supra note 69 at paras 19 and 20; Davidson, supra note 112 at paras 51 to 53.
144. Mann, supra note 69 at para 19; Suberu, supra note 138 at paras 3 and 5.
145. Grant, supra note 51 at paras 30 and 44; Suberu, supra note 138 at paras 25 and 34.
146. Grant, supra note 51 at para 44.
147. Ibid at para 32.
148. Ibid at para 31.
149. R v Moran (1987), 36 CCC (3d) 225 (ONCA) [Moran] at para 80.
150. Grant, supra note 51 at para 41.
151. Suberu, supra note 138 at para 29.
152. Moran, supra note 149 at para 82.
153. Griffiths, supra note 83 at paras 9 and 15; R v Pinto, 2003 CarswellOnt 5097 (SCJ) at para 46.
154. Grant, supra note 51 at para 169.
155. See eg R v Parks (1993), 15 OR (3d) 324 (CA) [Parks]; R v Hamilton, 172 CCC (3d) 114 (ON
SCJ); Griffiths, supra note 83; R v Lam, 2014 ONSC 3538.
156. Grant, supra note 51 at para 32.
157. Davidson, supra note 112 at para 53, citing Suberu, supra note 138 at para 23.
158. Brown v Durham, supra note 25 at para 62.
159. Waterfield, supra note 95.
160. Ibid at 661-662.
161. Waterfield, supra note 95.
162. As summarized in Figueiras, supra note 70 at paras 85-86. See also Simpson, supra note 82 at para
55; R v MacDonald, 2014 SCC 3, [2014] 1 SCR 37 at paras 37 and 39; Dedman, supra note 74 at para 73;
Mann, supra note 69 at para 26.
286 The Independent Street Checks Review

163. Brown SCC, supra note 5 at para 6.

164. Brown v Durham, supra note 25 at 249.
165. Figueiras, supra note 70 at para 45; also see Brown v Durham, supra note 25.
166. Davidson, supra note 112 at para 52, citing Brown v Durham, supra note 25 at para 67.
167. Brown v Durham, supra note 25 at para 78.
168. Grafe, supra note 73.
169. See eg Esposito, supra note 74 at para 15.
170. Ibid at para 15; Dedman, supra note 74 at para 11.
171. Suberu, supra note 138 at para 45. “Section 9 of the Charter does not dictate that police abstain from
interacting with members of the public until they have specific grounds to connect the individual to the
commission of a crime.  Likewise, not every police encounter, even with a suspect, will trigger an individ-
ual’s right to counsel under s. 10(b)” (ibid at para 3).
172. Mann, supra note 69 at para 18.
173. Ibid at para 45: “In this connection, I note that the investigative detention should be brief in dur-
ation and does not impose an obligation on the detained individual to answer questions posed by the
police.” See also R v Greaves, 2004 BCCA 484 at paras 48-51 and 60.
174. Police Services Act, supra note 63, s 2, states that “police officer” means a “chief of police or any other
police officer, including a person who is appointed as a police officer under the Interprovincial Policing Act,
2009, but does not include a special constable, a First Nations Constable, a municipal law enforcement
officer or an auxiliary member of a police force”.
175. The term First Nations Constable will be replaced with First Nations Officer on January 1, 2020, if
the Police Services Act, 2018, supra note 86, is proclaimed in force.
176. Regulation 58/16, supra note 63, s 3.
177. Ibid, s 4.
178. Ibid, ss 1(1).
179. Ibid, s 4 [emphasis added].
180. Ibid, ss 1(3).
181. See Highway Traffic Act, supra note 115; Liquor Licence Act, RSO 1990, c L 19; Trespass to Property
Act, supra note 108; Criminal Code, supra note 103.
182. Peart v Peel (Regional Municipality) Police Services Board (2006), 217 OAC 269 (CA) [Peart v Peel] at
para 91.
183. R v Smith, 2015 ONSC 3548; R v Khan (2004), 189 CCC (3d) 49, 244 DLR (4th) 443 (SCJ); R v
Brown (2003), 64 OR (3d) 161 (CA) [Brown ONCA].
184. See eg R v Humphrey, 2011 ONSC 3024 at paras 79-81.
185. The seriousness of the issue of missing persons will be recognized in the Missing Persons Act, 2018,
SO 2018, c 3, Schedule 7, which is yet to be proclaimed in force.
186. Bradford, Police Legitimacy, supra note 30 at 78.
187. Paul Quinton, “The formation of suspicions: police stop and search practices in England and Wales”
in Weber and Bowling, supra note 54, 5 at 9.
188. R v K (A), 2014 ONCJ 374.
 Notes 287

189. Granston, supra note 130 at para 36.

190. Regulation 58/16, supra note 63, ss 1(1)(c).
191. Brown v Durham, supra note 25 at para 31.
192. Jillian Boyce, “Police Reported Crime Statistics in Canada – 2014” (2015), online: Statistics Canada
<https://www.statcan.gc.ca/pub/85-002-x/2015001/article/14211-eng.htm>.
193. “Handgun seizure up 65%”, CityNews (15 June 2018) online: <http://toronto.citynews.
ca/2018/06/15/handgun-seizure-surge/>.
194. Claire Wilmot “Analysis of Toronto gun shooting stats will surprise you”, Toronto Star (30 July 2018)
online: <https://www.thestar.com/opinion/contributors/2018/07/30/analysis-of-toronto-gun-shooting-
states-will-surprise-you.html>.
195. Ibid.
196. “Homicide in Canada, 2017” (November 21, 2018), at 3 online (pdf ): Statistics Canada < https://
www150.statcan.gc.ca/n1/en/pub/85-002-x/2018001/article/54980-eng.pdf ?st=fAOQqI61>.
197. Ibid at 20 and 21.
198. Ibid, at 3.
199. Québec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier
Aerospace Training Center), 2015 SCC 39 at para 33, [2015] 2 SCR 789 [footnotes omitted] [emphasis
removed].
200. R v Richards, 1999 CarswellOnt 1196 at para 24.
201. R v Chehil, 2013 SCC 49, [2013] 3 SCR 220 at para 40.
202. Anthony N Doob and Rosemary Gartner, Understanding the Impact of Police Stops (Toronto, ON:
University of Toronto’s Centre for Criminology & Sociolegal Studies, 2017) A22, online (pdf ): <http://
criminology.utoronto.ca/wp-content/uploads/2017/03/DoobGartnerPoliceStopsReport-17Jan2017r.pdf>.
203. Ibid.
204. Delsol, supra note 26 at 80.
205. Bradford, “Unintended Consequences”, supra note 55 at 110.
206. Ben Bowling and Estelle Marks, “Towards a Transitional and Comparative Approach” in Delsol and
Shiner, supra note 8, 170 at 184-185.
207. Bradford, “Unintended Consequences”, supra note 55 at 119; Bowling and Marks, supra note 206 at
179-180; Delsol, supra note 26 at 79; Balázs M. Tóth and András Kádár, “Ethnic profiling in ID checks
by the Hungarian police” in Weber and Bowling, supra note 54, 31 at 38; Bowling and Weber, supra note
57 at 131-132.
208. Delsol, supra note 26 at 85.
209. “Stop and Frisk Data: Annual Stop and Frisk Numbers” (2 April 2018), online: New York Civil
Liberties Union <https://www.nyclu.org/en/stop-and-frisk-data>; Zolan Kanno-Youngs, Scott Calvert
and Mara Gay “New York City Major Crimes Fall to Lowest Record Level”, Wall Street Journal (4
January 2017) online: <https://www.wsj.com/articles/new-york-city-crime-rate-falls-to-lowest-recorded-
level-1483543802>; “Historical New York City Crime Data” online: NYPD <https://www1.nyc.gov/site/
nypd/stats/crime-statistics/historical.page>.
210. Shiner and Delsol, supra note 8 at 41.
211. Paul Quinton, Matteo Tiratelli and Ben Bradford, Does more stop and search mean less crime? (College
288 The Independent Street Checks Review

of Policing Limited, 2017) online (pdf ): <http://www.college.police.uk/News/College-news/Documents/

Stop%20and%20search%20-%20Less%20crime%20-%20Report.pdf>.
212. Ibid at 3 and 4.
213. Ibid at 3.
214. Ibid at 4.
215. Ibid.
216. Bradford, “Unintended Consequences” supra note 55 at 119.
217. Delsol, supra note 26 at 98.
218. McMurtry and Curling, supra note 43 at Executive Summary and vol 1, ch 4.
219. Molly Hayes and Jeff Gray “Toronto Mayor pleads for help from Ontario, Ottawa after 10 shot in
five days”, The Globe and Mail (4 July 2018) online: <https://www.theglobeandmail.com/canada/toron-
to/article-toronto-mayor-pleads-for-help-from-ontario-ottawa-after-10-shot-in/>; Antonella Artuso,
“‘Grave concern’ over gang-related violence: Tory”, Toronto Sun ( July 3, 2018) online: <https://torontosun.
com/news/local-news/grave-concern-over-gang-related-violence-tory>; The Canadian Press, “75 per cent
of shootings in Toronto are gang-related, Tory says”, Toronto Star ( July 3, 2018) online: <https://www.
thestar.com/news/gta/2018/07/03/75-per-cent-of-shootings-in-toronto-are-gang-related-tory-says.
html>.
220. Wortley and Tanner, supra note 59 at 192-208.
221. McMurtry and Curling, supra note 43 at ch 4.
222. See eg Jamie Brown and Jason Newberry, An Evaluation of the Connectivity Situation Tables in
Waterloo Region: Addressing Risk Through System Collaboration (Guelph, ON: Taylor Newberry Consulting,
2015) online (pdf ): <https://www.usask.ca/cfbsjs/research/pdf/research_reports/AnEvaluationoftheCon-
nectivitySituationTablesinWaterlooRegion.pdf>.
223. Ibid at 8-10.
224. Thomas Mackintosh “Can Scottish police help stop violent deaths in London?” BBC News (24
January 2018) online: <http://www.bbc.com/news/uk-england-london-42690960>.
225. Drazen Manojlovic, “Vancouver Police Department: Report to Vancouver Police Board re: Proposed
Addition of Policy, Procedure and Guidelines for Street Checks PR&A File # 2015-074” (Report date:
11 January 2016, meeting date: 26 January 2016), online (pdf ): Vancouver Police Department <http://van-
couver.ca/police/policeboard/agenda/2017/0126/1701R01-Response-to-OPCC-Street-Checks.pdf>.
226. Sunny Dhillon “New standards for B.C. police expected to address carding practices”, The Globe and
Mail (6 June 2018) online: <https://www.theglobeandmail.com/canada/british-columbia/article-new-
standards-for-bc-police-expected-to-address-carding-practices/>.
227. Manojlovic, supra note 225 at Appendix B, p 3 [emphasis in original].
228. Ibid at Appendix A, p 1.
229. Regulation 58/16, supra note 63, ss 5(1).
230. Ibid, ss 5(1)(a).
231. Ibid, ss 5(2).
232. Ibid, ss 5(3).
233. Ibid, ss 5(1)(b).
234. Ibid, ss 5(4).
 Notes 289

235. Ibid.
236. Ibid, ss 5(4)(1).
237. Ibid, ss 6(1)(b).
238. Ibid, ss 6(1).
239. Bradford, Police Legitimacy, supra note 25 at 146.
240. Lorraine Mazerolle et al, Legitimacy in Policing (Queensland, Australia: The Campbell Collabor-
ation, 2012) at 75, online (pdf ): <http://cebcp.org/wp-content/lpr/Mazerolle_Legitimacy-in-Policing.
pdf>.
241. Bradford, Police Legitimacy, supra note 30 at 166 and chapter 3.
242. Jonathan Price & Ben Bradford, “What is Trust and Confidence in the Police?” (2010) 4:3 Poli-
cing: J Policy & Practice 241; Andy Myhill and Paul Quinton, It’s a Fair Cop? Police Legitimacy, Pub-
lic Cooperation, and Crime Reduction (London: National Policing Improvement Agency, 2011) online
(pdf ): <http://whatworks.college.police.uk/Research/Documents/Fair_cop_Full_Report.pdf>; Lorraine
Mazerolle et al, “Shaping Citizen Perceptions of Police Legitimacy: A Randomized Field Trial of Pro-
cedural Justice” (2013) 51:1 Criminology 33, online (pdf ): <http://www.slcdocs.com/ODHR/Website/
Right%20to%20Safety/Literature/ShapingCitizensPerceptionsOfPoliceLegitimacy.pdf>.
243. The state of Washington employs an innovative training program called “LEED”: Listen and
Explain with Equity and Dignity. With the LEED model police officers are trained to take the time to
listen to people, explain what is going to happen and how the process works, explain why that decision
was made and leave people with their dignity intact. For more information, see Public Affairs, “WA State
Justice Based Policing Initiative” (25 April 2011), online: Seattle Police Department <http://spdblotter.
seattle.gov/2011/04/25/wa-state-justice-based-policing-initiative/>.
244. Regulation 58/16, supra note 63, ss 6(1).
245. Bradford, Police Legitimacy, supra note 30 at 147.
246. Regulation 58/16, supra note 63, ss 6(2).
247. Ibid, ss 6(3).
248. Ibid, ss 6(4).
249. R v Therens, [1985] 1 SCR 613 at para 57.
250. Freedom of Information and Protection of Privacy Act, RSO 1990, c F31, ss 39(2) [FIPPA]; Municipal
Freedom of Information and Protection of Privacy Act, RSO 1990, c M56, ss 29(2) [MFIPPA].
251. FIPPA, supra note 250, ss 39(3); MFIPPA, supra note 250, ss 29(3).
252. Supra note 88, and O Reg 267/18, s 2, item 7 [Regulation 267/18]. The individual’s name does not
need to be collected.
253. Regulation 267/18, supra note 252, s 2 item 7. This item of the Anti-Racism regulation applies
where a member of a police force is legally required to prepare a report if the police force is legally re-
quired to provide that information to the ministry. Chiefs of police are legally required to prepare reports
under sections 14 and 15 of Regulation 58/16, supra note 63. Section 16 of Regulation 58/16, supra
note 63, requires any relevant information to be provided by a chief of police to the ministry for reasons
including: developing programs to enhance police practices, standards and training; to ensure compliance
with prescribed standards of service; and maintaining records to conduct research studies in respect of
police services.
290 The Independent Street Checks Review

254. Grant, supra note 51 at para 32; Ferdinand, supra note 41 at para 14; Fountain, supra note 41 at para
20.
255. Draft Regulation, supra note 66, ss 5(1)(a). The draft Regulation provided that the officer shall “in-
form the individual that he or she is not required to remain in the presence of the officer”.
256. Grant, supra note 51 at paras 41 to 44.
257. André Marin, “Street Checks and Balances - Submission in response to the Ministry of Community
Safety and Correctional Services’ consultation on proposed Ontario regulation for street checks” (August
31, 2015) at 16 Recommendation 12, online (pdf ): Ombudsman Ontario <https://ombudsman.on.ca/Files/
sitemedia/Documents/OntarioOmbudsman-StreetChecks-EN.pdf>.
258. SC 2002, c 1, ss 3(1)(b)(iii) [YCJA].
259. Police Services Act, 2018, supra note 86, ss 39(1) and 61(1), scheduled to be proclaimed into force on
January 1, 2020.
260. YCJA, supra note 258, ss 3(1)(b)(iii).
261. Ibid, s 11 and 26.
262. Regulation 58/16, supra note 63, s 7. The document that is required to be provided to the individual
has been variously titled in the policies and procedures adopted under the Regulation as a “receipt”, “street
check receipt/document”, “Collection of Identifying Information Receipt”, “Record of Interaction Form”,
“Contact Card”, “Document of Interaction”, or simply “document”.
263. Regulation 58/16, supra note 63, ss 7(1).
264. Ibid, ss 7(4). On January 1, 2020, the Office of the Independent Police Review Director will be
renamed the Ontario Policing Complaints Agency, headed by the Ontario Policing Complaints Director,
if the Policing Oversight Act, 2018, supra note 67, s 42 is proclaimed in force.
265. Regulation 58/16, supra note 63, ss 6(1)(b).
266. Ibid, ss 7(2).
267. Ibid, ss 7(3).
268. Ibid, ss 9(6).
269. Ibid, ss 8(5).
270. Ibid, ss 9(2).
271. Ibid, ss 9(4)(b).
272. Ibid, ss 9(5).
273. Ibid, ss 9(3).
274. Ibid.
275. Ibid, ss 9(4).
276. Ibid, ss 9(5)(3).
277. Ibid, ss 9(5).
278. Ibid, ss 9(10).
279. Ibid, ss 9(9).
280. PACER, supra note 54 at 17; Logical Outcomes Report, supra note 54 at 64. For more information on
these reports, also see chapter 2.
 Notes 291

281. Anti-Racism Act, supra note 88, ss 7(10).

282. Regulation 58/16, supra note 63, ss 9(6).
283. Ibid, ss 9(7).
284. Ibid, ss 9(8).
285. Anti-Racism Act, supra note 88, s 2, 6 and 8.
286. Regulation 58/16, supra note 63, ss 2(1).
287. Ibid, ss 2(2) states that the Regulation applies to historical information only as provided under para-
graph 5 of subsection 12 (1), and subsection 13(1).
288. Ibid, ss 12(1)(5) and 13(1).
289. Historical data is sometimes referred to by police services as “legacy data”.
290. While the Regulation refers to “chief of police”, such references include the Commissioner of the
OPP, because the Commissioner is included within the definition of “chief of police” under section 2 of
the Police Services Act, supra note 63.
291. An application challenging the constitutionality of the retention of information collected prior to
the passage of the Regulation was dismissed for delay: see Singh v Toronto Police Services Board, 2016
ONSC 6291 (Div Ct).
292. “Globe editorial: CSIS needs to improve its data-collecting practices”, The Globe and Mail (25 June
2018) online: <https://www.theglobeandmail.com/opinion/editorials/article-globe-editorial-csis-needs-
to-improve-its-data-collecting-practices/>; X, Re, 2016 FC 1105 at paras 6, 33, 34 and Judgment.
293. Regulation 58/16, supra note 63, ss 11(1).
294. Ibid, ss 11(3) and (4).
295. Ibid, ss 11(2).
296. Under subsection 35(2) of the Police Services Act, 2018, supra note 86, yet to be proclaimed into force,
members of a police services board will be required to receive training on human rights and systemic ra-
cism, as well as training that promotes recognition of and respect for the diverse, multiracial and multicul-
tural character of Ontario society and the rights and cultures of First Nation, Inuit and Métis Peoples.
297. Shiner and Delsol, supra note 8 at 52.
298. S (RD), supra note 42.
299. Parks, supra note 155.
300. Heston Tobias and Ameil Joseph, “Sustaining Systemic Racism Through Psychological Gaslighting:
Denials of Racial Profiling and Justifications of Carding by Police Utilizing Local News Media” (2018)
Race and Justice, 1-32, at 27.
301. Anupam B Jena, Cass R Sunstein and Tanner R Hicks, “The Benefit of Having the Same Name as
a Police Officer” The New York Times (4 August 2018) online: <https://www.nytimes.com/2018/08/04/
opinion/sunday/police-bias-research-names.html>.
302. See “Fair & Impartial Policing”, online: Fair & Impartial Policing <https://fipolicing.com>.
303. Toronto Police Services Board, “Regulated Interaction with the Community and the Collection
of Identifying Information”, (Approved 24 April 2014, reviewed and/or amended 17 November 2016,
16 April 2015, and 18 June 2016), online (pdf ): Toronto Police Services Board <http://www.tpsb.ca/
policies-by-laws/board-policies/send/5-board-policies/543-regulated-interaction-with-the-commun-
ity-and-the-collection-of-identifying-information>.
292 The Independent Street Checks Review

304. The Honourable Michael H Tulloch, Report of the Independent Police Oversight Review (Toronto,
ON: Queen’s Printer for Ontario, 2017), Recommendations 12.3 and 12.4, online: <https://www.attor-
neygeneral.jus.gov.on.ca/english/about/pubs/police_oversight_review/>.
305. White and Fradella, supra note 26 at 121.
306. Section 111 of the Police Services Act, 2018, supra note 86, yet to be proclaimed into force, will re-
quire police officers to have a college or university degree or diploma or equivalent, or a secondary school
diploma and any additional criteria as may be prescribed.
307. D C McDonald, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted
Police: Second Report – Volume 2, Freedom and Security under the Law (Ottawa, ON: Minister of Supply
and Services Canada 1981, 1981) 708-715, online (pdf ): <http://publications.gc.ca/collections/collec-
tion_2014/bcp-pco/CP32-37-1981-2-2-1-eng.pdf>.
308. Home Office, Code A: Revised Code of Practice for the exercise by: Police Officers of Statutory Powers
of stop and search, Police Officers and Police Staff of requirements to record public encounters (Norwich, UK:
The Stationary Office, 2014) online (pdf ): <https://www.gov.uk/government/uploads/system/uploads/
attachment_data/file/414195/2015_Code_A_web-19-03-15.pdf>; Police & Criminal Evidence (Northern
Ireland) Order 1989: Code A: Code of Practice for the exercise by police officers of statutory powers of stop and
search (Northern Ireland: Department of Justice, 2015) online (pdf ): <https://www.justice-ni.gov.uk/sites/
default/files/publications/doj/pace-code-a-2015.pdf>.
309. Civilian Survey Results, Appendix E.
310. Regulation 58/16, supra note 63, s 10.
311. Ibid, s 12.
312. Ibid, s 12(4).
313. Ibid, s 12(3).
314. Ibid, ss 12(1) and 12(3).
315. Ibid, s 12(2).
316. SO 2015, c 30.
317. Some chiefs of police have adopted corresponding procedures.
318. Regulation 58/16, supra note 63, s 12(2).
319. PACER, supra note 54 at 42.
320. Supra note 316.
321. Regulation 58/16, supra note 63, s 13.
322. Subsection 31(1)(b) of the Police Services Act, supra note 63, provides:
31(1) A board is responsible for the provision of adequate and effective police services in a municipal-
ity and shall,
(b) generally determine, after consultation with the chief of police, objectives and priorities with
respect to police services in the municipality.
323. Adequacy and Effectiveness of Police Services, O Reg 3/99, s 31 provides:
31. Every chief of police shall prepare an annual report for the board relating to the activities of the
police force during the previous fiscal year, including information on,
(a) its performance objectives, indicators and results;
 Notes 293

(b) public complaints; and

(c) the actual cost of police services. 
324. Subsection 17(4) of the Police Services Act, supra note 63, provides:
Annual report
(4) After the end of each calendar year, the Commissioner shall file with the Solicitor General an
annual report on the affairs of the Ontario Provincial Police.
325. Regulation 58/16, supra note 63, ss 14(3) and (4).
326. Ibid, ss 14(2).
327. Wortley and Owusu-Bempah, “The usual suspects”, supra note 54, 43 at 43-44.
328. Regulation 58/16, supra note 63, ss 14(3).
329. Ibid, ss 14(4).
330. The following groups also endorsed the use of these categories:
Aboriginal Legal Services of Toronto
ARCH Disability Law Centre
Black Action Defense Committee
Canadian Association of Muslim Women in Law
Canadian Friends Service Committee
Chinese and Southeast Asian Legal Clinic
Colour of Poverty Colour of Change
Human Rights Legal Support Centre
Legal Aid Ontario
Ontario Federation of Indigenous Friendship Centres
South Asian Legal Clinic of Ontario
331. Regulation 58/16, supra note 63, ss 14(2)(9).
332. PAJ Waddington, Kevin Stenson and David Don, “In Proportion: Race, and Police Stop and Search”
(2004) 44:6 Brit J Crim 889 at 898.
333. Bradford, Police Legitimacy, supra note 30 at 69.
334. Shiner and Delsol, supra note 8 at 47; Paul Quinton, “Race Disproportionality and Officer Deci-
sion-Making” in Delsol and Shiner, supra note 8, 57 at 61 [Quinton, “Race Disproportionality”]; Brad-
ford, Police Legitimacy, supra note 30 at 76-77 and 99.
335. Quinton, “Race Disproportionality” supra note 334 at 57.
336. Curt Taylor Griffiths, Ruth Montgomery, and Joshua J Murphy, City of Edmonton Street Checks Policy
and Practice Review (Edmonton, Alberta: 2018) at 83, online (pdf ): <https://www.edmontonpolicecom-
mission.com/wp-content/uploads/2018/06/EPS-Street-Check-Study-Final-REDACTED.pdf>.
337. Shiner and Delsol, supra note 8 at 53.
338. Quinton, “Race Disproportionality” supra note 334 at 60.
339. UK, Home Office Research, Development and Statistics Directorate, Crime, Policing and Justice: The
Experience of Ethnic Minorities – Results of the 2000 British Crime Survey by Anna Clancy, Mike Hough,
294 The Independent Street Checks Review

Rebbecca Aust, and Chris Kershaw (London: Home Office UK, 2001), online: <https://www.lemosand-
crane.co.uk/dev/resources/HO%20-%20Crime,%20policing%20and%20justice.pdf>.
340. Quinton, “Race Disproportionality”, supra note 334 at 67.
341. Shiner and Delsol, supra note 8 at 54.
342. Bradford, Police Legitimacy, supra note 30 at 81.
343. Floyd v City of New York, 959 F Supp (2d) 540 (SD NY 2013).
344. Regulation 58/16, supra note 63, s 15.
345. Ibid, ss 14(2)(10).
346. Ibid, ss 14(1)(a).
347. Ibid, s 15.
348. Ibid, s 16.
349. Ibid, s 15.
350. Ibid, ss 15(1).
351. Ibid, ss 15(3).
352. Subsection 31(1)(e) of the Police Services Act, supra note 63, states:
Responsibilities of boards
31. (1) A board is responsible for the provision of adequate and effective police services in the muni-
cipality and shall,
(e) direct the chief of police and monitor his or her performance.
353. Regulation 268/10, supra note 65, ss 2(1)(g)(iii).
354. Regulation 58/16, supra note 63, ss 9(10).
355. Subsections 3(2)(b),(d), (e) and (h) of the Police Services Act, supra note 63, provide:
3(2) The Solicitor General shall,
…
(b) monitor boards and police forces to ensure that they comply with prescribed standards of service
or standards established under the Police Record Checks Reform Act, 2015;
…
(d) develop and promote programs to enhance professional police practices, standards and training;
(e) conduct a system of inspection and review of police forces across Ontario;
…
(h) develop, maintain and manage programs and statistical records and conduct research studies in
respect of police services and related matters.
356. “Youth in Policing Initiative” (last modified 2018), online: Toronto Police Service <http://www.toron-
topolice.on.ca/yipi/>.
357. William J Bratton and Jon Murad, “Precision Policing: Data, discretion, and community outreach
can ensure a new era of public safety”, City Journal (Summer 2018), online: <https://www.city-journal.
org/html/precision-policing-16033.html>.
 Notes 295

358. Commissioner Sidney B Linden, The Report of the Ipperwash Inquiry: Final Report, Volume 4 – Rec-
ommendations: Volume 2: Policy Analysis (Forest, ON: 2007) at 109-111, Recommendations 64 and 70,
online (pdf ): <https://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/report/vol_4/pdf/E_
Vol_4_B_Policy.pdf>.
359. Ibid at 109-111, Recommendations 65, 66 and 69.
360. “Concentus Citizenship Education Foundation” (2018), online: Concentus <http://concentus.ca/>.
361. Police Services Act, supra note 63, s 1.
362. G Ben-Porat, “Policing Multicultural States: Lessons from the Canadian Model” (2008) 18:4 Poli-
cing and Society 411, at 418-420.
363. Justin K Szeto, Policing Diversity with Diversity: Exploring Organizational Rhetoric, Myth, and Min-
ority Police Officers’ Perceptions and Experiences (MA Thesis, Wilfred Laurier University, 2014) [unpub-
lished] at 72, online: <https://scholars.wlu.ca/cgi/viewcontent.cgi?article=2762&context=etd>.
364. Ibid at 73-77.
365. Ibid at 81.
366. Jacques Marcoux et al, “Police diversity fails to keep pace with Canadian populations”, CBC News
(14 July 2016), <http://www.cbc.ca/news/canada/police-diversity-canada-1.3677952>. One reason of-
fered for the lack of diversity is that while diverse communities have been growing in size, police services
have not been able to keep pace with changing demographics, given that police careers often see people
join and remain for 30 to 35 years or longer. This longevity does not allow for the recruitment of diverse
candidates because there are simply no vacancies available.
367. Szeto, supra note 363 at 44.
368. Ben-Porat, supra note 362 at 416.
369. Robert G Hall, “A Brief Discussion of Police Culture and How It Affects Police Responses to In-
ternal Investigations and Civilian Oversight” (19 September 2002), online (pdf ): Canadian Association for
Civilian Oversight of Law Enforcement, <http://www.cacole.ca/resource%20library/conferences/2002%20
Conference/2002%20Presentations/Hall,%20R.%202002.pdf> citing Robert Reiner, The Politics of the
Police, 4th ed (2010), (Oxford: Oxford University Press, 2010).
370. Dr. Owusu-Bempah as referenced in Jacques Marcoux et al, supra note 366.
371. Peter Sloly, “There is a problem with our policing”, The Globe and Mail (23 July 2016), online:
<https://www.theglobeandmail.com/news/toronto/todays-policing-model-fails-to-serve-and-protect-
public-and-officers/article31090245/>.
372. It is important to point out that the survey results did not specify whether the participant is re-
ferring to a First Nations Police Service. This is particularly significant when considering the statistics
relating to Indigenous participants.
373. All pedestrians issued a receipt were asked for ID, but only 30% of those asked for ID were issued a
receipt.
374. All passengers issued a receipt were asked for ID, but only 43% of those asked for ID were issued a
receipt.
375. All drivers issued a receipt were asked for ID.