A Rose by Any Other Name: Well-Being Checks, a New Manifestation of Discriminatory Policing?

• Author: Leila Gaind
• Position: Holds an Honours B. Arts Sc. and MA from McMaster University, and is currently in her third year of the JD program at the University of Victoria
• Pages: 3-26

APPEAL VOLUME 25

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ARTICLE

A ROSE BY ANY OTHER NAME: WELLBEING

CHECKS, A NEW MANIFESTATION OF

DISCRIMINATORY POLICING?

Leila Gaind *

CITED: (2020) 25 Appeal 3

ABSTRACT

Citizens and advoca cy groups across Can ada have called for a n end to street checks, a

practice that involves t he police stopping and questioning people on the st reet, absent

grounds for arrest or detention, to collec t identifying i nformation. Across jurisd ictions,

the data reveal s that street checks disproportionately t arget Black, Indigenous, and other

racialize d and margina lized persons. Police departments have historica lly justied these

racial dispa rities by framing street check s as a proactive policing tool, but in recent years,

the rhetoric around street check s has shifted. Now, street checks are a way for oc ers to

check in on the “well-being” of ma rginaliz ed community members. In Vancouver, the

VPD has fra med this practice a s promoting a socia l good, but this article contends that

well-being checks a re another manife station of arbitrar y street checks.  is article rs t

examines how stre et checks and the discour se surrounding them have evolved in Toronto,

leading to the cur rent moment, where departments face mountin g pressure to justif y

racial dispa rities in their data . Next, this ar ticle shift s its focus to the Downtown Ea st

Side (DTES) of Vancouver, where police are facing a simila r public reckoning, and have

responded with one specic, novel justi cation: street checks are justi able as a proactive

policing tool that protects the i nterests of society’s most vulnerable. is ar ticle concludes

by arguing th at well-being checks may funct ion as a new manifestation of discr iminatory

policing, one that responds to a spec ic history and context but duplicates the exp erience

of an arbitrary s treet check.

* Leila Gaind holds an Honou rs B. Arts Sc. and MA from McM aster University, and is currently in her

third year of the JD program at the Un iversity of Victoria. She w ill complete her articles as a clerk

for the Ontario Superior Court. Leila sincerely thanks Professor Asad Kiyani for his supervision

and assistance with this pape r, and Sarah Pringle for her thoughtful a nd meticulous edits.

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APPEAL VOLUME 25

I. INTRODUCTION

In recent years, police de partments across Canad a have faced scrutiny because ra cialized,1

Indigenous, 2 and marginalized3 persons a re disproportionately subject to the pol ice

practice of “carding” or “street c hecks.” ese checks ty pically involve police stopping

and questioning people on the stree t, absent grounds for arrest or dete ntion, to collect

identifying in formation, which is then entered and stored i n a centralize d database for

intelligence gathering purposes.4

Advocates defend the pract ice as a necessary tool for solving a nd preventing crime, but the

resulting har m to those inordinately tar geted, who nd themselves subjec t to pervasive

and ongoing haras sment and surveillance, is unden iable.

5

Paired with mounting ev idence

regarding the i necacy of street che cks,6 the practic e is becoming increa singly dicu lt

for police departments to just ify.

e most recent, high-prole indic tment comes from the Ontario Cour t of Appeal’s

Honourable Michael Tulloch. In January 2019, Justice Tulloch released his long-awaited

Report of the Independent Street Checks Review,7 which conrmed what cr itics of carding

have been saying for year s: it is an ineective polici ng tool that comes at a tremendous

social cost, a nd as such, should be banned.8 W hile Justice Tulloch’s condemnation of

carding ma rks an importa nt turn in public d iscourse, it is unclea r how his ndings wi ll

1 “Racialization” refers to the processes th at produce and sustain race as a real and une qual

category.

2 As the Ontario Human Rights Commission exp lains, while Indigenous peopl e are also racialized,

this designation “fails to re cognize that many members of First Nati ons, Metis and Inuit

communities object to be ing referred to as a racial group,” and thus I will b e using the term

Indigenous separatel y to give recognition to the unique historic al experience of Indigenous

communities in Canada. See O ntario Human Rights Commission, “Un der Suspicion: Research

and consultation repor t on racial proling in Ontario” Ontario Human Rights Commission (April

2017), online: <http://ohrc.on.ca/sites/default/les/Under%20suspicion_research%20and%20

consultation%20rep ort%20on%20racia l%20proling%20in%20Onta rio_2017.pdf> at 15

archived at [https://perma.cc/9W ND-VU3P].

3 While street check data clearly indicates t hat racialized and Indigenous per sons are subject to

disproportionate p olice attention, the way in which pover ty and social marginalizatio n also

determine who is unfairly t argeted has been more dicult to tr ack. However, policing poverty is

a pervasive, inextricable problem that often aects those who experience intersecting forms of

oppression.

4 Law Union of Ontario, “Submissions to Toronto Police Servi ces Board Re: Community Contacts

Policy” Law Uni on of Ontario (25 May 2014), online: <http://www.lawunion.ca/tag /carding/>

archived at [https://perma.cc/YA6Z-Q4UB].

5 The harmful eects of racial prolin g are well-documented. As D esmond Cole stated, “because

of that unwanted scrutiny, that discriminator y surveillance, I’m a prisoner in my own cit y.”

SeeDesmond Cole, “T he Skin I’m In” Toronto Life (21 April 2015), online: <https: //torontolife.

com/city/life/skin-im-ive-interrogated-p olice-50-times-im-black/> archived at [https://perma.

cc/7R9V-ESSY ].

6 CBC News, “An Ontario judge says carding doesn’t work . But will politicians listen?” CBC News

(4 January 2019), online: <https://www.cbc.ca/news/canada/toronto/ontario-carding-review-

michael-tulloch-1.4964768> archived at [https://perma.cc/S576-SR2A].

7 The Honourable Michael T. Tulloch, Report of the Independent Street Checks Review (Queen’s

Printer for Ontario: 2018), online: <http://www.mcscs.jus .gov.on.ca/sites/default/les/content/

mcscs/docs/StreetChecks.pdf> archived at [https://perma.cc/ZA24-CKBP]. (“The Tulloch

Report”)

8 On April 17, 2019, Nova Scotia’s Justice Minister directed poli ce across the province to

immediately yet temporarily suspend the practice of street check s. This decision came shortl y

after a landmark repo rt indicated that Black peopl e in Halifax were being dispropor tionately

targeted. See Taryn Grant , “Nova Scotia suspends police stre et checks” The Star Halifax (17

April 2019), online: <https://www.thestar.com/halifax/2019/04/17/nova-scotia-announces-

immediate-suspension-of-p olice-street-checks.html> archived at [https://perma.cc/K6D6 -

SWZ6?type=image].