Wednesday 9 October 2013

Wrongful  infringements  by  the  police                            

The population of Toronto, Ontario in 2011 was 2,615,060, or 7.8% of Canada's total population of 33,476,688.  In Toronto, there are as many as 5,400 police officers which includes plainclothes officers.        

For the most part, the police officers in Toronto are decent, compassionate and law-abiding men and woman. There are exceptions of course but in this article, I am not writing about the exceptions but rather about a bad police practice that has in my opinion and the opinion of many others, a negative effect on the lives of innocent citizens. 

What I am speaking of was called, Carding which is now referred to by the police as Community Enquiry Reports. Shakespeare said it best when he said in one of his plays; “A rose is a rose by any colour.” I prefer to say that a skunk smells even when you wash it. For the purpose of this article, I will refer to the practice as carding.

What this means is that the police are stopping thousands of citizens (mostly blacks) in certain areas of Toronto and questioning them. The subsequent reports are then filed in the police data base and include their names, dates of birth, their addresses, whether they have a criminal record, the colour of their skin, whether or not they are clean shaven, whether or not they are Canadian citizens, their approximate height and weight, and what they are doing in that particular neighbourhood when stopped by the police.

The hierarchy of the police says that by having a large data base of people living in certain areas of Toronto, this will help the police fight crime in those areas. Actually I hate to admit it but such a data base would be helpful in finding criminals who have committed crimes. But at the same time, what the police are doing is unconstitutional.   

Section 9 of the Canadian Charter of Rights and Freedoms states;

“Everyone has the right not to be arbitrarily detained or imprisoned.
According to Black’s Law Dictionary, the word, “arbitrarily” means amongst other meanings, “wilful and unreasoning action without consideration and regard to facts and circumstances presented.”   The word “detain” means amongst other meanings; to hold and to restrain from proceeding.”  

In Hufsky v. The Queen, the Supreme Court of Canada made an interesting description as to what constitutes the detention of a person.  It said in part;

“The random stopping of the appellant (Hufsky) for the purposes of the spot check procedure, although of relatively brief duration, resulted in [the] appellant being detained within the meaning of section 9 of the Charter. The police officer, by the random stop, assumed control over the movement of the appellant by a demand or direction. Appellant was arbitrarily detained, within the meaning of section 9 of the Charter, as a result of the random stop for the purposes of the spot check procedure.” unquote

The word ‘direction’ in that decision means ‘an order’.

Now in the Hufsky case, the officer was justified in detaining Hufsky, to wit: randomly waving to him to pull over so that he could determine if the driver was impaired or if he had a driver’s licence or was driving while his licence was suspended or whether his car was insured because the officer’s actions had legislative authority to do so and his act in doing so was done for a lawful purpose.

There is however, no legislative law in Canada that gives a police officer the right to randomly interfere with a citizen walking or standing on a street and detain him where he is walking or standing for the purpose of questioning him in order to seek private details of the person so that those details can be placed in a police data bank.

Now it is clearly obvious that if a police officer sees someone prowling around a neighbourhood late at night rather than walking in one specific direction, the officer may very well be suspicious of that person’s behavior and he has the right to stop that person and ask him what he is doing in the neighbourhood. If the person refuses to answer that question and the officer then drives away, it is possible that the person he left behind might be a burglar and is trying to find an abandoned house to burglarize.

The citizen would be wise to explain to the officer his presence in that neighbourhood. For example, the officer would be quite right to ask him where he lives. If the person lives in the area, he would be stupid to tell the officer that he won’t answer that question. An honest person who is walking home will tell the officer where he lives. If the person says he is on his way home, the officer could follow him discretely to make sure that the person is telling the truth. If the person says he is visiting a friend, again the officer should make sure he is telling the truth.

Now if the person is uncooperative when approached or lies about his destination, then the officer has the right to continue detaining him and ask him for his name. He can then check via the equipment in his car as to whether or not he is a felon or is wanted by the police. If it turns out that the person has a previous record of break and enter or other serious crimes and is on parole or probation and is violating his parole or probation by being out that late, he can arrest him and take him to the station for further investigation. If the person refuses to give his name after refusing to explain why he is in the area late at night, in my opinion, the officer has the right to detain him further and take him to the police station for further investigation if and only if the person was acting suspiciously when the officer first saw him.

However, if the officer is satisfied that the person is legitimately being in that area, he should thank the person for his cooperation and move on. He should not detain him for the purpose of carding him. To do so, conflicts with the edict of section 9 of the Charter and therefore infringes on the rights of the citizen.

Unfortunately, the Toronto Police Force continues to abuse the rights of the citizens as well as others in this manner as they have done so for years. One officer has carded 6,600 people from 2008 to 2012.  Are we to believe that he was suspicious of the conduct of that many people in the area he patrolled?  During that same time period, as many as 26,627 people were stopped and questioned by the police. Did that many people walking in the streets of Toronto raise suspicions in the eyes of the police officers?  What is disturbing is that in certain neighbourhoods, all young black males were stopped and questioned by the police.     

Although the vast majority of black males in Toronto are law-abiding, many  of them are still subjected to the improper detention by police officers for the purpose of carding them because of the actions of a much smaller number of blacks who commit crimes. If the white population in Toronto were subjected to this form of abuse, thousands upon thousands of them would storm the police headquarters.

This kind of conduct by the police raises the question as to whether or not carding innocent people really reduces crime.   If anything, it would increase crime. Let me explain why.

In order for police forces to solve crimes, they need the cooperation of the members of society. If the police piss them off, the cooperation will be nil. Let me give you an example.

Many years ago, I witnessed a car accident taking place from the beginning to the end. I parked my car to the side of the road and waited twenty minutes for the police to arrive. Meanwhile, there was quite a crowd standing about. When a police officer arrived, I approached him and told him that I had witnessed the accident and would be willing to give him my statement but that I had to do it right away as I was already late for an appointment. 

The fool said, “Stand back! I will get to you as soon as I get other statements from witnesses.” I told him, “You aren’t getting a statement from me.” I then got into my car and drove to my appointment. A couple of days later, that same police officer showed up at my door. He got my address from writing my plate number in his book. He told me that he was there to get my statement. I sneered at him and said, “The time to get my statement was when it was offered to you. Now you are too late. I have completely forgotten what I saw.” Then I slammed my door in his face. 

People who can be helpful to the police when the police are investigating crimes but the police will get doors slammed in their faces if the people they are hoping will assist them are pissed off because of the abuse they received from unthinking, uncaring police officers. Does anyone really believe that the 26,627 people who between 2006 and 2012 that were unnecessarily questioned and carded are going to cooperate with the police? If they don’t cooperate with them, then more crimes will go unsolved and crime will increase.

I would be remiss if I didn’t tell you this next vignette. You will love the ending of it. A man witnessed a car accident and approached the police officer investigating the accident. He too said he was in a hurry but would be willing to give the officer his statement. The office said, “Get back, Sir. I will take your statement when I am good and ready to do so.” The man walked away. The next morning, the young officer was ordered to go to the office of the deputy chief of police. When he entered the deputy’s office, the officer practically went into shock. He was staring at the same man that he ordered the previous night to step away from the scene. The officer’s next shift and many that followed was what is commonly referred to as the graveyard shift, if you get my meaning.

Studies have revealed that frequent exposure to police stops can and often do reduce cooperation and confidence in the police per se and as such, it undermines the successes of the justice system because criminals get away with their crimes when no one will talk to the police about the criminal’s wrongdoings. It isn’t the police who suffer; it is the victims who suffer.

Further (and this is important) our youth must understand the need to cooperate with the police because if they don’t learn it when they are young, they will ignore the police especially if  the police also need their cooperation when they are older. How can we instill that sense of responsibility to our young people when all that they will remember in the years of their youth were the constant abuses by the police they had been subjected too.

There is nothing wrong in collecting appropriate race-biased statistics as that will expose systematic biases and ultimately improve the relationships between the police and the minorities in our communities. That’s good policing and it is good for the community also. But carding ordinary people walking on the streets or gathering in the parks serves no good purpose at all and instead it infuriates the people who have been subjected to such abuses.

I am concerned that despite the denials by the hierarchy of the Toronto Police Force, in my opinion, the officers are carding so many so that they reach a certain quota. Anyone who cards 6,600 people in a six-year period is trying to reach a quota.

Within New York City's 81stPolice Precinct, a police officer who suspected that there was corruption in his Precinct, taped conversations he had with follow officers. The tapes included a great many conversations related to the issues of arrest quotas and investigations. He said that an overemphasis on arrests led to wrongful arrests and bad police work.

Recently, a judge in New York City ruled that the stop and frisk tactic of the New York Police Department violated the constitutional rights of the minorities who were being harassed in that manner.  He said that the police had been stopping innocent people minding their own business for years without any objective reason to suspect them of any wrongdoing. They searched their pockets for contraband or guns or whatever.

This brings me to mind of an event in my life in 1964. I was investigating cases on behalf of Ontario legal Aid and as such, I had to mingle amongst real low-life. I decided that I needed some form of protection so I came up with an idea.  I bought a small spray bottle of nose drops and emptied it and replaced it with acetic acid which is a bit stronger than vinegar. I carried it in my pocket in case I needed to spray a thug in his face to get him away from me.

One day a police officer approached me and he began to frisk me. He removed the bottle of what he thought was nose spray from my pocket. He looked at it then handed it back to me. It is a good thing he did. If he had sprayed that acetic acid up his nose, his eyes would instantly begin watering like a waterfall while he was screaming and dancing on the sidewalk. The damage wouldn’t be permanent but he sure wouldn’t be spraying an unknown substance up inside his nose anymore—especially if he pulled it out of the pocket of a stranger.

The judge in New York correctly stated that the stop and frisk practice was in violation of the Fourth Amendment of the United States Constitution which prohibits unreasonable searches and seizures.  

The judge also said that no one should have reason to fear of being stopped and randomly searched without justifiable cause when going to or from his home. It follows that in Canada, no one should have reason to fear of being stopped, questioned and having their personal information placed in a police data base when they have committed no wrong while they are walking to or from their home or are in another public place.

History has shown us that there are only three kinds of people who abuse the rights of their fellow citizens. They are; dictators, members of armed forces and members of police forces. Canada doesn’t have a dictator, its armed forces do not abuse its citizens so we are left with the police and sure as God made little apples, it is the police who abuse the people in Canada.  Not all police officers abuse innocent people but when an entire police force chooses to abuse people en masse by using appalling practices to fulfil their objectives, it is time for the courts to come to our rescue and put an end to this kind of abuse currently being brought about in Toronto by members of the Toronto Police Service.


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