PART II: PROHIBITION — CERTAIN COLLECTIONS OF INFORMATION |
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SnapshotQuestion: When is a police officer not allowed to collect identifying information? This section becomes law on January 1, 2017. This Part contains only one section: Section 5 and various subsections. Section 5(1) states: an officer is not allowed to collect information if the individual:
HOWEVER, section 5 also contains many exceptions. An officer can approach a person based on their racial identity to collect information if:
Section (2): lists what “other information” a police officer must have, in addition to an individual’s racial identity, in order to try to collection information from that individual. For example, other information can include: the location of the individual, type of vehicle the individual may be found in, or the behaviour of the individual. The “other information” cannot just be the sex of the individual. Section (4): An officer must be able to explain the reason why there was an attempt to collect identifying information from an individual (remember, police officers are not allowed to request such information randomly or in a random way). This section lists what the officer must be able to explain. For example, an officer must explain why they believed (“reasonably suspected) the individual they approached for information could assist with inquiring about suspected offences, suspicious activities and/or gathering intelligence. The police officer’s reason(s) cannot include:
Further, an important provision to highlight is 5(4)(3) which says that a police officer cannot simply gather information from someone because they live in a priority neighbourhood. This particular section is important to highlight for criminalized communities. |
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Section #s | Section(s) wording |
Section 5(1) (Limitations on collection of certain information) | A police officer shall not attempt to collect identifying information about an individual from the individual if,
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Commentary/Analysis on Section 5(1) |
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Section 5(1): A police officer cannot try to gather identifying information about a person even though the person provided it, if any part of the reason for trying to gather this information is because the police officer thinks that the person is from a specific racialized group. However, there are exceptions (i.e. certain situations where an individual’s race may be part of the reason that a police officer tries to gather identifying information from a particular individual). These exceptions are when:
A police officer is also not allowed to attempt collection of identifying information from an individual:
The problem with this is that often times, racialized people who are dark-skinned may be mis-read as being a part of a particular racialized group, even if they are not. As a result, a police officer could potentially try to collect information from a Black person because they “look” South Asian, even though the person that fits the description is actually South Asian. |
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Section 5(2) (Limitations on collection of certain information) | Without limiting what might constitute the additional information required under subclause (1) (a) (iii), such information may consist of information about,
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Commentary/Analysis on Section 5(2) |
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This section refers to the additional information a police officer must have if race is one of the reasons for approaching an individual to collect identifying information.
Section 5(2): Without restricting what might be the additional information needed under subclause (1) (a) (iii), such information may include information about, how the person looks; where the person may be found (i.e. neighbourhood, place of work, family home, friend’s home, school etc.); the kind of vehicle the person might be found in (i.e. car, scooter, motorcycle, bike etc.); who the person hangs out with; how the person acts (this would include if the person has mental health issues). This may subject already over-policed neighbourhoods and people to increased surveillance which speaks to the overall issue with the carding regulations: the regulations were meant to *stop* the arbitrary over-policing of these individuals and their communities. |
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Section 5(3) | The additional information required under subclause (1) (a) (iii) may not consist only of the sex of the individual, the approximate age of the individual or both. |
Commentary/Analysis on Section 5(3) |
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Section 5(3): The additional information needed under subclause (1) (a) (iii) may not include only of the sex of the person, the possible age of the person or both the sex and possible age. | |
Section 5(4) (Limitations on collection of certain information) | 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:
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Commentary/Analysis on Section 5(4) |
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This section is important because it sets out when an attempted collection of identifying information is considered “arbitrarily” or randomly done (i.e. without no good reason). Section 5(4): As per clause (1) (b), a police officer trying to gather information from a person would be deemed random unless the police officer has reasons that would comply with all of the following:
But, how would a common person know what a police officer can and cannot legally ask? b) The person has tried or is trying to end the interaction with the police officer and can legally do so It is important to note here that if a person feels like they cannot escape, then they have been arbitrarily detained and their rights under the Charter would be activated (i.e. to know what they are being charged with, that they have a right to counsel, and the right to remain silent etc.) 3) The reason is just that the person is in a high crime location or priority neighbourhood This means that you cannot be carded simply because you live or are hanging out in a priority neighbourhood (list of priority neighbourhoods as of 2014). |