Saturday, December 28, 2013

Carding - is it legal?

Carding, that is police stopping of pedestrians on the street, and asking for identification and other information, is in the news again. (Note, if you are stopped I urge you always to be polite with police regardless of your legal rights. Unless you actually have something problematic on your person cooperate fully. If you have something problematic then politely say "I believe I do not have to answer any questions or show you what I have on me. I refuse to answer any questions or show you what I have on me. May I go now?" If they arrest you the police then have to justify their actions)

Toronto Police insist carding is lawful. And in a narrow sense they are quite correct.

In general, the police can ask you any questions they want but you do not have to talk to them, show them your identification or answer their questions. The police are in no better position legally than anyone else - I am entitled to ask people on the street questions and they are entitled to ignore me.

The problem is that when a uniformed police officer asks questions most people (reasonably) assume they must answer.

People's uncertainty about their right to not answer questions is made worse by the police making implicitly threatening remarks such as:

i. What are you trying to hide!
ii. What do you have in your pocket!
iii. Do I have to take you to the Police Station?!

If someone reasonably believes they have no choice but to answer questions and are not free to go then they are detained. And detention leads to a host of issues that probably render carding unlawful.

If, as a factual matter, police detain an individual as part of carding - something that is very possible - then constitutional issues arise. Random detention breaches constitutional rights. There are legal rights arising on detention. These constitutional breaches may be permissible but only if the police show, among other things, that such breaches are reasonable limits prescribed by law. Such is possible but not likely.

Of course most people who are carded have a brief police interaction and no charges are laid. They have no reason to raise the legality of the interaction. People who are charged (say with drug offences) have reason to argue the legality but seldom present as sympathetic.

As a result carding (legal or not) may not receive a full analysis by the court.

9 comments:

Stephen Downes said...

You say: "Unless you actually have something problematic on your person cooperate fully. If you have something problematic then politely say "I believe I do not have to answer any questions or show you what I have on me. I refuse to answer any questions or show you what I have on me."

The problem is, this response is what makes carding an effective strategy for distinguishing between criminal and non-criminal,. and will lead police to continue to do it.

There needs to be a short and neutral non-confrontational response that allows a person to decline further investigation without cause or warrant. As a lawyer, you are probably ideally placed to come up with one.

Ranger said...

I'm not a lawyer, but I think the only thing to ever say to a police officer (or mall rent-a-cop, for that matter) is:

Am I free to go?

tono-bungay said...

Unfortunately, common law police powers are not so clear. A court can retroactively make make an illegal police search legal by invoking ancillary powers doctrine. It's a scary trend. [Coughlan, Steve, Common Law Police Powers and the Rule of Law (2007). 47 Criminal Reports (6th) 266, 2007]

Anonymous said...

I was once stopped on a university campus (outdoors) by the campus police where I was a student at the time and asked for ID. I showed him and he let me be. I was told by him I had to produce ID because the campus was private property. Is it true that I was required to produce ID in that circumstance?

Anonymous said...

Basically you never have to produce ID unless you are driving. You can always just ask "am I free to go"

Jim Pook said...

First, I agree with Stephen Downes - Your response was a problem in that you only should refuse to be carded IF you have something problematic on you person.

I feel that unless the police have probable cause to stop you, you should refuse to show ID, refuse to answer questions, and refuse to be searched or detained.

The propper response is to ask "Am I under arrest?", if the answer is "no.", then the followup question is "Am I being detained?"

If they answer "no." then that is followed by "Am I free to go?"

If they answer "no." then ask "What is your probable cause for detaining me?"

Also good to state "If I am not under arrest, or being detained, I would like to leave. May I leave now?"

At this point, you are either free to go or you are being detained, thus opening up the legal issues you talked about.

Now if Canadian judges had any respect for the law, anything found on your person by an illegal search should be thrown out. However, they are more likely to rule "well they found something illegal, so I will allow it - guilty."

Recently in the US, a cop was just convicted of unlawful anal cavity searches he conducted on young black males. It took over two years of "investigation" and over 26 recorded violations before he was convicted and got only 2 years in jail.

The cops are not your friend. The less interaction you have with them, the better your life will be.

Jim Pook said...

Followup

Link to US Cop story mentioned in my previous comment:

Unbelievably lenient sentence for cop who fingered suspects’ anuses

http://dailycaller.com/2013/12/29/judge-hands-down-unbelievably-lenient-sentence-for-cop-who-fingered-suspects-anuses/#ixzz2p4K9yfyz

Unknown said...

There is no reason to ask if you are under arrest. They will make that quite clear.

Start with the question 'Am I free to Go'. It is non confrontational and forces them to make explicit what may only be implicit. They cannot get in trouble for making you feel detained (standing too close for example) or suggesting they think you may have done something without a good reason to say so (which they are free to do) but if they wish to answer NO to the question 'Am I free to go' they have to have a reasonable reason to do so. The SECOND they answer NO you are detained, and if they did not have a good reason for it, they have broken the law. You are then free to ask why, and this is where they must provide a SPECIFIC (not hand wavy and vague) reason you are suspected to be involved in or about to be involved in a crime. At this point (and ONLY after being detained) you are required to IDENTIFY YOURSELF (NOT provide ID - unless you are doing something that requires a license) and nothing more. If they chose to arrest you, you are not required to tell them anything and it is best not to talk to them until you get a lawyer. If they need a reason why you will not talk to them (saying it makes you look guilty) remind them that you are in a situation where they are allowed to lie to you but anything you misrepresent, even unintentionally, can lead to charges so you require legal advice for the proceedings to be fair.

Anonymous said...

Stay strong people and refuse to be abused or intimidated. Walking home from work, to the store, a friends house, or just walking for fun is not suspicious or illegal. Remember - the police do not live in your neighborhood- you do. This is YOUR street, and how dare they make us feel like we did something wrong by using it. A.C.A.B!!! Working Class Pride!!!