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New Provincial Legislation Regarding Police Street Checks

The Province of Ontario has filed the final regulations dealing when police officers can stop people in public and ask them to identify themselves - normally called "carding" or "street checks." This new legislation will come into effect on January 1st, 2017.

Under the new legislation, anytime an officer stops a citizen they must inform that person of their right not to provide identifying information. Police must provide a reason for making the request, and the reason cannot be arbitrary or because the citizen declined to answer a question or attempt to end the conversation. Nor are police allowed to ask for a person's information solely based on race or because the person is in a high-risk crime location.

Police are required to offer a document that includes their name and badge number, as well as information on how to contact the Independent Police Review Director over any concerns raised about the police questioning.

This legislation, however, does not prevent the Police from obtaining identifying information where the person is legally required to provide it (such as a traffic stop under the Highway Traffic Act), where the person is under arrested or under detention, or where an officer has a reasonable suspicion that the interaction is necessary to their investigation (and thereby is not arbitrary).

This new legislation will likely provide some litigation over the issue of whether the officer had reasonable suspicion or whether it was arbitrary. The legislation is a ways away, not coming into force for another 9 months, but it will likely be a piece of legislation that will likely pose an issue in cases involving minorities, who are currently the highest targets of carding, and people in high-risk crime area. This will likely arise in cases involving the sale, and trafficking, in drugs. It will serve as one more approach which a good defence lawyer can use in the defence of their client. Being aware of this legislation, and how it has been considered judicially, will be important for investigations and arrests done in public places following its enactment.

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