To Stop or not To Stop? Police Carding Practices - LawNow Magazine

To Stop or not To Stop? Police Carding Practices

criminal law

In R. v. Omar, 2018 ONCA 975 (CanLII), the Ontario Court of Appeal has rubber stamped the illegality of what is commonly referred to as carding, declaring that “[Everyone has] every right to be walking down the street unimpeded by the police” (at para 51).

In a stunning decision where the Crown’s case rested solely on the drugs, firearm and ammunition found on Mr. Omar, the Court of Appeal excluded the evidence because of the breaches of the Applicant’s rights. Mr. Omar was acquitted on all counts.

“I recognize that the exclusion of a firearm from evidence may be seen from one perspective as producing an unpalatable result” the Court held, “but a difficult result in one case is sometimes an acceptable price to pay for ensuring respect for Charter rights…” (at para 60).

While there might be frustration or confusion as to the loss of this prosecution, society should be equally outraged at the blatant disregard for our Charter rights displayed by the officers in this case. Each and every individual has the right to walk down to the street without police intervention. Far from being deemed a mere technicality, the right to be free from arbitrary detention is one of our most sound constitutional principles that separates us from many other countries around the world. Put simply, the police must have a lawful reason for stopping someone and investigating them.

Thus, the practice of carding, which is essentially what happened in Mr. Omar’s case, has no sound legal basis. An officer cannot simply stop individuals, demand identification and then arrest them because they refuse a demand to search their pockets.

Far from being deemed a mere technicality, the right to be free from arbitrary detention is one of our most sound constitutional principles that separates us from many other countries around the world.The Crown had argued at trial that, because the officers did not believe they had illegally detained Mr. Omar, there was a good faith basis for their actions. The Judge at trial agreed and allowed the evidence. Mr. Omar was convicted. The Court of Appeal took the opposite position: “The police had no lawful justification to detain the appellant. They have no excuse for not knowing that they violated his Charter rights when they did so” (at para 61).

The Court of Appeal’s strong words provide a cautionary lesson to all officers to deter them from arbitrarily detaining individuals. As it turns out, their lack of a legal basis for doing so can result in extremely important evidence being excluded by one of the highest courts in the country: R. v. Grant, 2009 SCC 32 (CanLII).

Importantly, there are parallels between this case and the seminal case of Grant where the Supreme Court of Canada outlined the scope of arbitrary detention and the framework for excluding evidence pursuant to the Charter. Both Mr. Omar and Mr. Grant were young black men confronted by a larger officer dressed in a police uniform. It is important to note that the relevance of the age and race of the applicants cannot be divorced from the police behaviour in question. Thankfully, the Court of Appeal recognized the importance of this ruling in the greater societal context and has conveyed a clear message that one’s Charter rights should not be less secure because of the race, age, or ethnicity of the individual. One can only hope that every police officer charged with the duty to protect and serve our communities has the same sentiments, standards and beliefs.

Authors:

Melody Izadi
Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.
 


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