On Friday, Justice Minister Mark Furey announced that street checks would be permanently banned following a legal opinion written by former Nova Scotia Chief Justice Michael MacDonald and researcher Jennifer Taylor that concluded street checks are illegal.
We should, of course, not have needed this opinion to ban checks, which the Black community has already pointed out are illegal and where the harms have been documented for years. And at any point, the province could have sought a reference from the courts or an opinion from the Department of Justice without Black people having to seek reports, opinions, and to protest for years.
While this is not a court decision, taking it seriously has implications beyond simply banning street checks in Halifax. If this opinion is to be considered more than an exercise that allows the government to save face with police in banning the practice (bowing to legal expertise rather than Black protesting), then questions have to be asked about what the further effects of this decision will be.
What does this mean for other municipalities? If street checks are illegal in Halifax, then they are illegal everywhere. In May, a decision at the Supreme Court of Canada declared:
Requiring the police to comply with the Charter in all neighbourhoods and to respect the rights of all people upholds the rule of law, promotes public confidence in the police, and provides safer communities…
How can other cities and forces justify continuing the practice in light of this MacDonald and Taylor opinion? And how can cities justify continuing to approach this matter in an ad hoc way, with each individual municipality making decisions about whether and when to ban profiling? What other illegal practices do we take a wait and see attitude towards? Checks should be immediately banned across the country, not just in Halifax.
If street checks are illegal, then does that mean that police who continue to check people should be subject to professional disciplinary charges?
What oversight is there to ensure the police are not conducting these illegal checks and to hold them accountable? What consequences can police expect if an illegal check is reported?
And what are the consequences for the government, for the police commissions, for chiefs, and for everyone else responsible for allowing illegal checks?
If street checks are illegal, then what impact is this going to have on future court decisions? Are all cases where suspects were arrested in an illegal check going to be thrown out of court? Are people who have a record due to street checks able to apply to have their records wiped? Will there be amnesty for people whose criminal records result from checks?
Can victims of illegal checks sue the province or expect compensation?
What happens to the data already obtained from these illegal checks?
In September, the province released an action plan called Count Us In in response to the United Nation’s Decade for People of African Descent. Despite being touted as the first province to recognize the decade, the plan itself is largely empty. In the section on justice, despite citing the statistics from the Wortley report on street checks and those on provincial incarceration, the plan makes no recommendation to ban street checks, nor does it suggest setting targets to reduce the African Nova Scotian population in provincial jails. There is a recommendation to partner with community groups to provide culturally appropriate education programs in correctional facilities, but no suggestion about getting people out of those facilities, nor about providing culturally appropriate education before people get to jail in the first place.
There are a lot of words about awareness and education and strengthening, and very few commitments to actual structural change. Certainly there is no demand for reparations, despite the United Nations call in the programme for the decade for states to implement reparations. The Working Group of Experts also was explicit in saying Canada should adopt reparations. So why is the province not following suit?
Those provincial statistics on the over-incarceration of African Nova Scotians are directly caused by the criminalization of African Nova Scotians, largely young Black men, through checks we have now decided are illegal. The Wortley report revealed that one in three Black males were charged with a crime between 2006 and 2017.
How can we have a justice plan for African Nova Scotians that presents a statistic but does not provide any policies for addressing the injustices caused by street checks?
If the province now acknowledges that street checks are illegal, then what response are we going to see in the justice system — in the courts, in rulings, in how we prosecute cases, in who we incarcerate, in the consequences of previous charges – to deal with that reality?
The fight against street checks does not end with the ban. There are not only the questions about how to enforce that ban, but even bigger questions about how our community can receive justice after generations of being the victims of this practice.
Often when a demand is made and finally met, the issue is considered closed. But protesting street checks was never only about checks in isolation. Banning street checks but continuing to increase police budgets and arming the police does not mean our communities are no longer threatened. Banning street checks but investing in more surveillance equipment like facial recognition, stingrays, and cameras in our neighbourhoods does not end racial profiling, it simply moves to better technologies to continue to control and criminalize us.
Throughout the struggle against street checks, I have repeatedly argued that it is a mistake to treat street checks as a single issue detached from broader issues of state violence. The danger now is that, having banned street checks, the conversation about policing is considered to be over. Our communities must continue to organize against the investment in punishment, against criminalization, against expanding prisons and building new jails in Cape Breton, and we must continue to organize for resources to be put into our neighbourhoods for us to build the programs we need and not into armoured vehicles.
Many people have argued that if we ban street checks, the police will simply move the practice underground. I have commented before that if police can not obey the law, then they should be fired. You cannot work at Burger King and refuse to obey the rules without consequences, yet we seriously entertained arguments that the rights of Black people should continue to be violated because we can’t expect police to do their jobs.
So now the question remains about who will police the police, and how we will ensure checks are actually banned. To this date, despite a previous moratorium, we received no reports or data about how police were actually enforcing that moratorium and how it was being monitored. We have little reason to believe, then, that the police will actually end this practice.
And this is why organizing against street checks is not finished. Prison lawyer Michael Jackson has pointed out that one way institutions sustain themselves is by entering into cycles of crisis and reform. Reforming the institution, while it seems at the time like change, is actually how unjust institutions like prisons and policing continue to operate. When reform is made, we are told to give it time, or asked what more do we want.
But we do want more. It is not enough for us to be counted into a system that is built upon injustices towards us. I don’t want to be counted in, I want racism to be counted out. That begins with African Nova Scotians being given the resources to redress these harms. The NDP have proposed an African Nova Scotian Justice Institute. Funding our communities to address these issues ourselves is a start. There is still more work to do.
Investment in the HRM schools with poor education outcomes would have long lasting and positive impact.
I thought the early education programme that was introduced in schools in low income areas would give the children a good start but then the province expanded it to all primary schools. And combine the programme to help single mothers enter the workforce and obtain permanent employment. The burden of child raising in poor families primarily falls on the mothers, we don’t know where the fathers are.
El is certainly right to question “Now What?” There are so many unanswered questions about what policing will look like going forward. The illegality of the street check practice was not in question in the minds of most people.
The inclusion, in this article, of the view from prison lawyer Jackson about the nature of cycles of “crisis and reform” is apt. You want to give the impression that you are doing something, form a commission or establish a focus group or whatever, and then wait for the splash that goes with their eventual report to the public- Reminder of some of our dandies- Now or Never, We Choose Now, Charting a Path for Growth,…All kinds of plans and little in the way of oversight and arms’ length evaluations.
Maybe the NDP proposal for an African Nova Scotian Justice Institute would be helpful.
That’s what the Commission on Inclusion thought when it recommended an Institute to oversee the implementation of the new inclusion policy in our education system. That body would have also overseen the monitoring, assessing and evaluation of such implementation- something that has been very poorly done over the last two decades. That failure is one of the main reasons for the failed implementation of the current policy on inclusion. However, the government opted not to form and fund such an institute. That may presage the government reaction to any proposal from the NDP or PC opposition.