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Street Checks and Canadian Youth: a Critical Legal Analysis

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Street Checks and Canadian Youth: a Critical Legal Analysis STREET CHECKS AND CANADIAN YOUTH: A CRITICAL LEGAL ANALYSIS A Thesis Submitted to the College of Graduate and Postdoctoral Studies In Partial Fulfillment of the Requirements For the Degree of Master of Laws In the College of Law University of Saskatchewan Saskatoon By CHRISTINA ABBOTT © Copyright Christina Marion Abbott, September 2017. All rights reserved. Permission to Use In presenting this thesis/dissertation in partial fulfillment of the requirements for a Postgraduate degree from the University of Saskatchewan, I agree that the Libraries of this University may make it freely available for inspection. I further agree that permission for copying of this thesis/dissertation in any manner, in whole or in part, for scholarly purposes may be granted by the professor or professors who supervised my thesis/dissertation work or, in their absence, by the Head of the Department or the Dean of the College in which my thesis work was done. It is understood that any copying or publication or use of this thesis/dissertation or parts thereof for financial gain shall not be allowed without my written permission. It is also understood that due recognition shall be given to me and to the University of Saskatchewan in any scholarly use which may be made of any material in my thesis/dissertation. Requests for permission to copy or to make other uses of materials in this thesis/dissertation in whole or part should be addressed to: Dean of the College of Law University of Saskatchewan 15 Campus Drive Saskatoon, SK S7N 5A6 Canada OR Dean College of Graduate and Postdoctoral Studies Room 116 Thorvaldson Building, 110 Science Place Saskatoon, Saskatchewan S7N 5C9 Canada i Abstract Street checks occur when (a) a police officer engages with an individual, (b) in circumstances where the police officer does not have sufficient grounds to detain the individual, (c) the police officer elicits information from that individual, and (d) the individual’s information is stored in a police database. Street checks recently became a topic of discussion in many legal debates and in newspaper articles across Canada. Some individuals argue that street checks are conducted in a discriminatory manner and raise concerns about the constitutionality of the practice. Others argue that street checks are an important investigative tool that contributes to public safety. Unfortunately, absent from most of these debates is a discussion about the impact of street checks on youth, who are heavily targeted by the practice. Stastistics reveal that young males from racial minority groups are disproportionately targeted for police stops, and the pattern is mirrored in street check data. Some of the harmful effects of disproportionately conducting street checks on young racialized males will be considered in my thesis. In my thesis, I analyze the constitutionality of street checks using the framework of the Youth Criminal Justice Act and the Charter of Rights and Freedoms. Provisions of the Charter of Rights and Freedoms that are engaged by street checks include, but are not limited to, the right to not be arbitrarily detained, the right to silence, the right to be free from unreasonable search and seizure, and the right to counsel. The Youth Criminal Justice Act occasionally offers rights and protections that overlap with those offered by the Charter, for example, the right to silence and the right to counsel; however, the Youth Criminal Justice Act also extends beyond Charter protections, by restricting the use and retention of youth records and guaranteeing the right to enhanced procedural protections. Next, I discuss the Regulations that were passed in Ontario to govern street check practices, and I analyze whether the Regulations sufficiently address the Charter of Rights and Freedoms and Youth Criminal Justice Act infringements. Ultimately, I conclude that concerns continue to exist regarding the constitutionality of street checks and that street checks involving young people should be banned. It does not appear that any Regulations or policies could be passed that would allow street checks to be conducted in a manner that complies with the Youth Criminal Justice Act and the Charter of Rights and Freedoms. ii Acknowledgements First and foremost, I would like to thank my supervisor Professor Sarah Buhler for her guidance, encouragement, and ongoing support. I would also like to thank the members of my committee, Professor Glen Luther and Professor Mark Carter, for your valuable feedback. Also, thank you to the Law Society of Saskatchewan and the University of Saskatchewan for providing me with the funding to pursue my Master of Laws degree. Additionally, I would like to thank Professor Heather Heavin as Associate Dean of Graduate Studies and the staff at the College of Law for assisting me throughout my enrollment in the Master of Laws program. iii Dedication This work is dedicated to my father John and stepmother Anna, my sister Julia, my partner Uche for his support, and to the memory of my mother Marion. iv Table of Contents Permission to Use .................................................................................................................................................. i Abstract .................................................................................................................................................................... ii Acknowledgements ............................................................................................................................................ iii Dedication .............................................................................................................................................................. iv Table of Contents .................................................................................................................................................. v Chapter I: Introduction ....................................................................................................................................... 1 Chapter II: Establishing a Definition for Street Checks ............................................................................ 4 Chapter III: Racialized Policing and the Context in which Street Checks Occur .............................. 8 (a) Prevalence of Discriminatory Police Practices .......................................................... 8 (b) Prevalence of Discriminatory Police Practices during Street Checks ................... 13 (c) Impact of Discriminatory Street Checks .................................................................. 16 (i) Infringing on the Rights of Marginalized Youth Occupying the Streets ............................................................................................................. 17 (ii) Sense of Injustice and Disempowerment ..................................................... 18 (iii) Perpetuating the Misconception of Racialized Youth as Criminal .......... 20 (iv) Time Lost and Stress Experienced during a Street Check ........................ 22 (v) Unwillingness to Participate in the Justice System ..................................... 25 (d) Summary of the Context, Circumstances and Impact of Street Checks ............... 26 Chapter IV: An Examination of Street Check Practices Using the Charter of Rights and Freedoms and Youth Criminal Justice Act ................................................................................................... 28 (a) Arbitrary Detention ................................................................................................... 29 (i) What is a “Detention”? ................................................................................... 29 (ii) When is the Detention “Arbitrary”? ............................................................ 33 (iii) Do Street Check Interactions Amount to a Detention? ............................. 36 (iv) Is the Detention that Arises during a Street Check Arbitrary? ................ 43 (b) The Right to Silence ................................................................................................... 44 (c) The Right to Counsel .................................................................................................. 48 (d) The Retention of Youth Records .............................................................................. 51 (e) Enhanced Procedural Protections for Youth .......................................................... 57 Chapter V: Proposed Solutions to the Charter of Rights and Freedoms and Youth Criminal Justice Act Infringements, as outlined in Ontario’s Regulations, The Collection of Identifying Information in Certain Circumstances ....................................................................................................... 58 (a) Consent Required from Participants ........................................................................ 58 (b) Grounds for Conducting a Street Check ................................................................. 65 (c) Prohibition on Arbitrary Street Checks ................................................................... 66 (d) Time Limits Imposed on Record Retention ............................................................. 67 Chapter VI: Proposed Steps Forward .......................................................................................................... 71 Chapter VII: Conclusion ................................................................................................................................... 75 Bibliography
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