1. What are street checks?

A street check is a discretionary police practice where police stop a person in public, question them outside the context of an arrest or detention or police investigation, and often record their personal information in a database.

Street checks are interchangeably referred to as carding or police stops. A street check can include recording of personal information upon observation of someone by the police, without any face-to-face contact between the person and officer. Street checks also take the form of wellness checks. Police officers in full uniform and carrying a gun often conduct wellness checks, thus introducing a hierarchy of authority and threat of force.

Street checks “evade” the Charter protections guaranteed to people under arrest or investigative detentions. Even if someone is theoretically free to leave during a street check (the police characterize street checks as “voluntary”), this is impractical. Due to the inherent power imbalance between a police officer and a member of the public, people frequently believe they have no choice but to obey the police—especially when the person stopped is vulnerable, relies on public space to live, is Indigenous, Black, racialized, or has experienced state violence.

2. Are Street Checks Legal?

No. There is no law that allows police to detain people to ask them for personal information outside of an investigation into a specific crime.

There are two main sources for police powers in Canada: i) statues and ii) the common law (determined by the courts).

There is no applicable statute authorizing street checks for any police force in British Columbia. The BC Police Act includes a broad list of police duties such as maintaining law and order and preventing crime, however, it does not explicitly authorize information-gathering practices like street checks. There is also no applicable regulation governing this police practice.

Street checks are also not authorized at common law. People in Canada have the right to move freely without fear of unjustified state intervention. Street checks interfere with both a person’s liberty interest (section 9 of the Canadian Charter of Rights and Freedoms states “Everyone has the right not to be arbitrarily detained or imprisoned”) and privacy interest (section 8 of the Canadian Charter of Rights and Freedoms states “Everyone has the right to be secure against unreasonable search or seizure.”). Since the VPD defines a street check as impeding a person’s movement, we argue that street checks are a form of arbitrary detention that are not authorized by law.

The three common law police duties are “preserving the peace, preventing crime, and protecting life and property.” Police officers maintain that street checks are valuable because they help protect the public and prevent crime. There is very little evidence to support this claim. In fact, in communities that are disproportionately impacted by street checks, reports[1] have shown that street checks create fear of the police. This legitimate distrust hinders the ability of the police to protect the public and prevent crime. Street checks are not reasonably necessary to fulfill policing duties and unjustifiably interfere with an individual’s fundamental liberty rights and their reasonable expectation of privacy.

Street checks are a form of arbitrary detention. 

The Supreme Court of Canada in R v Le judicially recognized that racial context was an important part of determining whether a reasonable person would believe they had no choice but to comply with a police demand for information. The power imbalance between the police and the public, particularly in the context of Indigenous and racialized communities, warrants the understanding that for many in these communities, voluntariness does not exist. In fact, they are being psychologically detained.

Psychological detention occurs where an individual or a reasonable person would conclude by reason of the police officer’s conduct that he or she had no choice but to comply. Police can only detain someone when they have reasonable grounds to suspect that an individual is engaged in a specific crime and the detention is reasonably necessary in the circumstance.

According to R v Le, a reasonable person belonging to a racialized identifiable group, particularly in the current climate of heightened awareness of systemic racism in policing, would perceive a street check as coercive. The person being street checked would likely assume they have no choice but to comply, completely undermining any notions of “voluntariness” Outside of an investigation into a specific crime, an individual who has been stopped has effectively been arbitrarily detained.  Arbitrary detentions are in contravention of the Charter, and hence, illegal.

If you would like to read more about why street checks are illegal, please visit https://humanrights.novascotia.ca/news-events/news/2019/street-checks-legal-opinion

3. Who gets street checked?

Indigenous and Black people are significantly over-represented in the numbers of street checks conducted by the Vancouver Police Department (VPD). In 2017, Indigenous people accounted for over 16% of street checks despite being 2% of the population, and Black people accounted for 5% of street checks despite making up 1% of the population. In 2016, Indigenous women, who comprise 2% of Vancouver’s women population, accounted for 21% of women who were street checked.

While there has been much emphasis on street checks in Vancouver, the same pattern emerges in municipal police departments across the province. Data from Abbotsford, Central Saanich, Nelson, New Westminster, Oak Bay, Port Moody, Saanich, and West Vancouver police departments reveal a decade of racial targeting, with Indigenous women over-represented in all departments’ data on street checks. In West Vancouver in 2018, Indigenous women represented 17.6 percent of women who were street checked, despite making up 0.6 percent of the population there. It’s clear that street checks are a harmful practice across BC.

The VPD says street checks can also occur “if a police officer checks on the well-being of an at-risk person.” “At-risk” has become a pretext to justify street checks in the form of wellness checks in over-policed neighbourhoods, such as the Downtown Eastside of Vancouver. Police wellness checks disproportionately affect people with inadequate housing, sex workers, people who use drugs, and people in mental health distress. Such checks are an inappropriate means of providing care for people living in poverty and/or vulnerable due to gendered, colonial, and racial violence.

Police wellness checks often have a tragically fatal impact, with a growing number of police killings across Canada of overwhelmingly Indigenous, Black, immigrant and/or racialized people in mental health distress, including Ejaz Ahmed Choudhry, Phuong Na (Tony) Du, Robert Dziekański, Chantel Moore, Regis Korchinski-Paquet, Ian Pryce, O’Brien Christopher Reid, and Naverone Woods. A CBC investigation reveals that since the year 2000, around 70% of police-involved fatalities in Canada have been of people in mental health or substance use crisis, or both.

4. Who has jurisdiction to address street checks?

Both the Vancouver Police Board and the provincial Director of Police Services have the jurisdiction to end the police practice of street checks in Vancouver and BC, respectively

Under the Police Act, municipal police boards are required to “take into account the priorities, goals and objectives of the council of the municipality.” Section 26(4) of the Act also authorizes municipal police boards to “determine the priorities, goals and objectives of the municipal police department.” Banning street checks is a policy matter within the jurisdiction of the Vancouver Police Board. Even if this was an operational decision, the BC Supreme Court has held, “The [Vancouver Police] Board is ultimately responsible for all aspects of policing performed by the Vancouver Police Department, whether they are policy or operational matters.”

The provincial Police Act also authorizes the provincial Director of Police Services to establish mandatory standards respecting “the promotion of unbiased policing and law enforcement services delivery.” The BC government, thus, also has the jurisdiction to immediately prohibit the police practice of street checks across the province.

5. What needs to happen to address street checks?

Prohibiting street checks is only one part of the many actions needed to end police harm, but it is a necessary part. Therefore, the BC Government, City of Vancouver, and Vancouver Police Board must immediately ban street checks in Vancouver and across British Columbia.

Notes:

[1] Nova Scotia, Human Rights Commission, Halifax, Nova Scotia Street Checks Report (Halifax: NS Human Rights Commission, 2019), [Wortley report]. Pyxis Consulting Group, Vancouver Police Board Street Check Review (Vancouver: Vancouver Police Board 2019) at page 144 “Community members emphasized that how police officers communicate can positively or negatively impact if and how people report personal safety concerns and victimization.” Ontario, Report of the Independent Street Checks Reviews, by the Honorable Michael H. Tulloch (Queen’s Printer for Ontario 2018) at para 48-9. Abigail Sewell & Kevin A. Jefferson, “Collateral Damage: The Health Effects of Invasive Police Encounters in New York City” (2016) 93 Suppl 1 J Urban Health 42-67 online: See also Kwame McKenzie, “Carding amplifies racism, decreases health” (10 June 2015), online (blog): Wellesley Institute. We need more spikes, BC Police departments disproportionately street check Indigenous and Black people, https://www.needsmorespikes.com/blog/bc-street-checks, 2019.