Police carding continues to be a controversial police tool. Also known as street checks, police carding refers to the contact cards that police fill out when they stop and question individuals. The problem is that in the majority of cases the person hasn’t done anything wrong but their name and information is stored. The practice has been criticized for being ineffective and discriminatory, as it tends to target young men of colour and ethnic minorities. Recently, former Ontario Ombudsman Andre Marin said that the practice of police carding is “wrong and illegal”. He added his voice to the many who object to the practice.
In light of this controversy, the Ontario government has been reviewing the practice of carding. On October 23, 2015, the minister of community safety, Yasir Naqvi announced plans to eliminate the practice of carding in Ontario by the end of this fall. He said that the government is developing regulations that would prohibit random or arbitrary stops by police and would regulate the types of interactions between police and citizens that are voluntary and productive.
But until the government comes up with clear and concise rules around carding (and the police services implement them), it remains a problem. So what are your rights if you’re stopped by police (on the street)?
Police Carding | What to do if you are Carded.
If you’re walking down the street and not driving or riding a bike and you are not committing a crime, you do not have to show identification or answer police questions. This right is enshrined in the Charter of Rights and Freedoms. But many lawyers would point out that it’s often better to be polite and cooperate and then file a complaint after the fact.
If you’re unsure about speaking to the police, you can speak to a lawyer. At Smordin Law, we are able to provide you with the advice you need before speaking to police.
If you’ve been arrested as a result of carding – either through an obstruction charge or with reasonable grounds – you need a defence team on your side that understands the Charter issues involved.
A victim surcharge is an additional – financial – penalty that convicted individuals face upon sentencing. The money collected helps to fund programs for victims of crime. If there’s a fine, the victim surcharge is an additional 30% of that fine. If there isn’t a fine, convicted individuals have to pay $100 for summary offences and $200 for indictable offences.
Judges find ways to get around Victim Surcharge
In October of 2013, the federal government made victim surcharges mandatory. In the years since then, several judges came up with creative ways to get around imposing the surcharge or have ignored it all together. Many judges object to imposing fines on impoverished offenders. For example, in 2014, an Ontario Court of Justice judge, David Paciocco, found that a $900 fine was grossly disproportionate that it would outrage the standards of decency. The offender was impoverished, Inuit, and had addiction issues. Justice Paciocco found that fining the offender $900 was cruel and unusual punishment.
Several other judges have followed Justice Paciocco’s example but recent appeals decision have upheld the victim surcharges as constitutional. This past September, Ontario Superior Court Justice Laurie Lacelle overturned an Ontario Court of Justice decision that found that the surcharge was unconstitutional. Justice Lacelle found that fining the offender $700 was not cruel and unusual under the Charter, even though the offender makes $136/month.
Although there are many judges and lawyers criticizing victim surcharges, at this point, they remain mandatory. That means that, in addition to potential jail time and a criminal record, convicted individuals can face steep victim surcharges depending on the number of offences. This is particularly troubling for low-income offenders.
The risk of an additional financial penalty on sentencing highlights the importance of having a lawyer to be on your side in court. Smordin Law accepts Legal Aid certificates and the lawyers have experience and sensitivity representing low-income offenders.