Part I – Do the carding rules apply?

 

PART I
APPLICATION AND INTERPRETATION

SNAPSHOT

QUESTION: DO THE CARDING RULES APPLY?

Part 1 of the carding rules outlines when the law applies. Part 1 includes sections 1-4 and became law on July 1, 2016.  Section 4 provides the definition of “attempt to collect identifying information about an individual from an individual.”

The phrase “attempt to collect identifying information about an individual from an individual” can be broken down into key parts.

  1. Attempt to collect
  2. Identifying information
  3. About an individual
  4. From an individual

The attempt to collect identifying information about an individual from an individual” means 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.

So, it does not matter whether a police officer actually collects information the information they are asking for. The carding law applies to all attempts to collect identifying information about an individual, from an individual, for the purposes listed. 

This definition also captures individuals who are asked to identify another individual other than him or herself.

HOWEVER, according to Section 1(2) the carding law will not apply if an officer is collecting identifying information:

  •  for the purpose of investigating an offence and
  • the officer reasonably suspects the offence has been or will be committed.
ALSO, Section 1 (3) lists further situations where the carding law will not apply. For example, if an individual is under arrest or being detained or if an officer is executing a warrant.
Section #s Section(s) wording
Section 1 (Application – attempts to collect)   (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,

  1. inquiring into offences that have been or might be committed;
  2. inquiring into suspicious activities to detect offences; or
  3. gathering information for intelligence purposes.

When a police officer inquires about offences that either have been or might have been committed; or suspicious activities to detect offences; or gather information, the officer must follow these regulations. If a police officer engages in conversation or an interaction with someone not connected to any of these purposes, it is not clear when or how this distinction is made or when or how these purposes changes.  

(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 reasonably 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,

    1. the individual is legally required to provide the information to a police officer;
    2. the individual is under arrest or is being detained;
    3. the officer is engaged in a covert operation;
    4. the officer is executing a warrant, acting pursuant to a court order or performing related duties; or
    5. the individual from whom the officer attempts to collect information is employed 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.

Commentary/Analysis on Sections 1(1)-(3)

Section 1(1):  This means that when a police officer looks into offences that a person may or may not have been committed; or looks into questionable activity in order to figure out if an actual offence has been committed; or collects information, the police officer must follow these rules under this section.  

If a police officer talks or interacts with someone who is not connected to any of these reasons, it is not certain when or how these rules change.

Section 1(2):  If an officer believes (i.e. “reasonably suspects”) that an offence may have been or will be committed, the carding rules do not apply 

Given this is new regulation and recently enacted, it will be up to the courts to define what “reasonably suspects” means in the circumstances under this regulation including court’s consideration of the circumstances as a whole, what is objective in the circumstances and police training

Section 1(3): Furthermore, regardless of subsection (1), this regulation does not apply where a police officer tries to collect identifying information from someone if: the person is, by law,  required to provide information to the police officer; the person is under arrest or in custody; the police officer is lawfully participating in an operation in which they must not disclose their true identity; the police officer using their warrant is doing so because a court order told them to do so or they were made to do so through their job; the person that the police officer is trying to get information from works in the administration of justice or is acting or providing services that are required through their job.

With reference to section 1(3)(b) (where an individual is under arrest or being detained), the person being questioned should consider exercising their right to counsel as per section 10b of the Charter and their right to remain silent as per section 11c of the Charter–again, only if it is safe for the individual to do so.  

Section 2 (Application – information collected) (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 subsection 13 (1) in relation to that paragraph.

Commentary/Analysis on Sections 2(1)-(2)

Section 2(1):  This regulation applies to information that is gathered on or after January 1, 2017.

Here it is important to recognize that this regulation does not apply to information collected on or before December 31, 2016. This begs the question: what kind of policies and practices apply to information collected prior to December 31, 2016? Allegedly, the chiefs of police/Boards are to develop policies to answer this question.

Section 3 (Non-Application – person appointed under the Interprovincial Policing Act, 2009)  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.

Commentary/Analysis on Section 3

Section 3: This regulation does not apply when a police officer under the Interprovincial Policing Act, 2009 collects information. The Interprovincial Policing Act is an Act that “establishes a system for temporarily appointing police officers from other Canadian provinces and territories (extra-provincial) as police officers in Ontario.”  Specifically, police officers who may be temporarily appointed to working as a police officer in Ontario will not be governed by the Carding Regulations when collecting information about an individual. Further, the issue that stands where is whether police officers will identify as a police officers under the Interprovincial Policing Act, 2009 when they stop and question someone.
Section 4 (Interpretation – attempt to collect identifying information)  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.

Commentary/Analysis on Section 4

Section 4: For the purpose of this regulation, “attempt to collect identifying information about an individual from the individual” means collecting information by asking the person stopped, to identify themselves or to give information that would identify the person stopped (i.e. government identification like a driver’s license).  The information or identification that you provide may or may not be recorded. There are a myriad of issues relating to people who do not have status (as citizens in Canada) or who do not have identification (like homeless people and others in situations without “valid” identification).

 

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