Street check apology misses the point: Black people continue to be profiled and surveilled

The African Nova Scotian community is concerned with racial profiling by the police as a whole. The experience of racist policing beyond the legal definition of street checks is captured in the phrase “Driving While Black,” used by Black people to describe how common the experience of racist traffic stops based on thin or unprovable suspicion are. The Jay-Z song “99 Problems,” released the same year (2003) as the Kirk Johnson decision, described the ways police use these stops to harass, intimidate, and criminalize Black people.

The issue of traffic stops is of particular concern with the expanded powers of police under the Cannabis Act. The police no longer need to have “reasonable suspicion” in order to pull a driver over. There is nothing to stop police from making race-motivated stops under this law. The Wortley report showed that “Black people in Halifax were 4.5 times more likely to be arrested for marijuana possession than their presence in the general population would predict.” As experts told Manisha Krishnan of Vice:

Cannabis lawyer Jack Lloyd also said people of colour will be disproportionately subjected to random stops. He told VICE this aspect of the bill will likely be challenged on the grounds that it is unconstitutional. It could be considered unreasonable search and seizure, he said, and the law itself has no rational connection to effectively curbing the behaviour it is purportedly trying to stop.

When the Black community speaks out about racial profiling and the long history of violent and violating encounters with the police, we are not just talking about data, or pedestrian stops, but the larger picture of all the ways Black people are surveilled, controlled, and targeted.

In focusing on a narrow definition of street checks — only those stops that involve data collection — a significant amount of the interactions Black people have with police are outside the ban. Regulating one form of racist policing is essentially meaningless if the police can continue the majority of their racist practices unchecked.

The ban also does not cover calls to police, which means that white people can continue to call the police on Black people for reading suspiciously.

But even with a ban on a small number of stops in place, it still is not clear how a ban is even being enforced. No reports were ever released on the moratorium to indicate how the police monitored whether or not they were performing any checks, who was overseeing the police to ensure compliance, or whether any checks took place while the moratorium was in place. We have received no information on the ban other than the government’s assurance that they have ended checks.

Just because the government declares a ban does not mean a ban is actually in place.

It is not even clear if the standard use to ban checks will change anything. In the Minister’s Directive on the moratorium, announced on April 17, 2019, the standard of “suspicious activity” is used for when police can justifiable collect and record information. “Suspicious activity” is defined as:

[A]ny activity where, under all circumstances, there are objective, credible grounds to request identifying information.

The Directive does not define “objective, credible” grounds. Particularly absent is the explicit statement that police must have evidence of a connection between the individual and a recent or ongoing offence. The police can continue to stop people and gather information while “inquiring into suspicious activity.”

Given that Black people being outside, at night, in the perceived wrong place or neighbourhood, with too many other Black people, listening to music, possibly having weed, looking scared of police, phone being mistaken for a weapon, being perceived as threatening, etc. are all used as grounds of suspicion, it is unclear how this actually changes anything about the police’s ability to stop Black people based on their own perceptions, fears, and stereotypes.

It is also not clear how this ban stops the police from fabricating “credible” grounds of suspicion after they execute an illegal stop. In theory, the police are not supposed to stop people they believe may be committing a crime without proof, nor treat behaviour like being present in a high crime area as suspicious, but who is going to report or oversee them to make sure this doesn’t happen?

Recommendation 2.9 in the Wortley Report says that:

[T]he new regulation should require officers to provide citizens with a receipt when subjected to a formal street check. This receipt should include the time and date of the interaction, the reason or justification for the street check and the name and badge numbers of the officers involved. The receipt should also include information on how the civilian can retrieve their full street check record as well as information on how to contact the Police Complaints Commissioner (OPCC).