Part II – Limits on collecting information

 

PART II: PROHIBITION — CERTAIN COLLECTIONS OF INFORMATION

Snapshot

Question: 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:

  • is approached because of their racial identity (*there are exceptions)
  • is approached randomly (*more exceptions)

HOWEVER, section 5 also contains many exceptions.

An officer can approach a person based on their racial identity to collect information if: 

  • the officer is seeking a particular individual
  • racial identity is part of a description or visual image of the individual
  • the officer has racial plus some other information to help identify or narrow down the description of the individual

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:

  • The individual refused to answer a question that does not legally require an answer
  • The individual discontinues talking to the officer, unless the individual is under arrest or detention

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.
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,

  1. any part of the reason for the attempted collection is that the officer perceives the individual to be within a particular racialized group unless,
    1. the officer is seeking a particular individual,
    2. being within the racialized group forms part of a description of the particular individual or is evident from a visual representation of the particular individual, and
    3. the officer has additional information, in addition to information about the particular individual being in a racialized group, that may help to identify the individual or narrow the description of the individual; or
    4. the attempted collection is done in an arbitrary way.

Commentary/Analysis on Section 5(1)
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:

  • the police officer is looking for a particular person
  • being from a particular racialized group (i.e. Black, Indigenous, South Asian) is a part of the description of the person that they are looking for or that it is clear by just looking at the person, and
  • the police officer has additional information, on top of the information that they already have about the person’s race, that may assist to identify the person or narrow the description of the person; or

A police officer is also not allowed to attempt collection of identifying information from an individual:

  • the attempted collection is done in a random way.

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.
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,

  1. the appearance of the individual, including information about the individual’s clothing, height, weight, eye colour, hair colour or hair style;
  2. the location where the individual might be found;
  3. the type of vehicle the individual might be found in;
  4. the associates the individual might be found with; or
  5. the behaviour of the individual.

Commentary/Analysis on Section 5(2)
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.

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)
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:

  1. The reason includes details about the individual that cause the officer to reasonably suspect that identifying the individual may contribute to or assist in an inquiry described in clause 1 (1) (a) or (b) or the gathering of information described in clause 1 (1) (c).
  2. The reason does not include either of the following:
    1. that the individual has declined to answer a question from the officer which the individual is not legally required to answer, or
    2. that the individual has attempted or is attempting to discontinue interaction with the officer in circumstances in which the individual has the legal right to do so.
  3. The reason is not only that the individual is present in a high crime location.

Commentary/Analysis on Section 5(4)
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:

  1. the reason includes things about the individual that causes the police officer to reasonably believe that the person may help and inquiry described in clause 1 (1) (a) or (b) or the collection of information described in clause 1 (1) (c).
  2. However, the reasons cannot include any of the following:
  1. The person does not answer an illegal question posed by the police officer

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).