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Open letter to Minister Mark Furey re position of the African Nova Scotian Decade for People of African Descent Coalition on street checks

June 17th, 2019

Open Letter to: Minister Mark Furey, Attorney General and Minister of Justice Province of Nova Scotia

Dear Minister Furey:

Re: Position of the African Nova Scotian Decade for People of African Descent (ANSDPAD) Coalition on Street Checks

Thank you for your correspondence dated May 31st, 2019 and June 6, 2019 email from Ms. Valerie Pottie Bunge, Co-convener of the Wortley Report Action Planning Working Group with the Nova Scotia Department of Justice. We understand that you wish to reconvene the Working Group and have the ANSDPAD Coalition’s participation. We have explained the reasons why we have stepped away from the table and hope to outline here what our outstanding concerns are and what would be necessary to have us rejoin conversation and collaboration with the parties to improve police/Black community relations throughout Nova Scotia.

Illegality of Street Checks – affects everyone

It bears repeating that street checks are illegal (no matter who is the subject of the check) by virtue of there being no legal authority authorizing such checks. In addition, they are illegal by virtue of being carried out based on race, whether that discrimination is intentional or arises from unconscious or systemic bias. That ANSDPAD Coalition understands that the Nova Scotia Human Rights Commission has commissioned past Chief Justice Michael MacDonald to examine the legality of street checks as recommended by the Wortley Report. The recent Supreme Court of Canada case of R v. Le (2019 SCC 34) will no doubt provide useful guidance in that regard.

Open Letter of April 10, 2019

The ANSDPAD Coalition reiterates the position taken in our open letter of April 10, 2019 and during our discussions with members of the Wortley Report Action Planning Working Group – that is that we cannot ‘regulate’ illegal police action being taken against citizens. A ban is required.

We look forward to a detailed substantive response from the Government on the keys issues raised therein. For ease of reference, the April 10th list is as follows:

The following action must be taken by the appropriate authorities using a process that is led by and engages African Nova Scotians:

1. Street checks should be banned in Nova Scotia and all safeguards recommended in the Wortley Report be applied to other types of police stops;

2. That the Kirk Johnson decision (Halifax Regional Police Service v. Johnson (No.1) (2003), 48 C.H.R.R. D/302 (N.S. Bd. Inq.) be implemented such that police provide a “proposal for how information could be provided on the role of race in traffic stops by the Halifax Regional Police” as set out on page 41 of that decision;

3. That existing street check data not be used;

4. That anyone subject to a street check in the past be given written documentation of the street check information recorded about them; and whether and how their personal information was used – including whether it was shared with other parties;

5. That the harm caused by the collection and use of such street check information be remedied;

6. That once such harm has been remedied, all street check records be destroyed;

7. That the Halifax Regional Police and RCMP issue an apology for the disproportionate number of street checks undertaken against African Nova Scotians;

8. That significant resources be directed toward the community-led development of an African Nova Scotian justice strategy to address street checks and other issues of systemic racism in the criminal justice system. That strategy would include an African Nova Scotian Justice Institute to implement the following initiatives:

a. An African Nova Scotian policing strategy to review and monitor police policies and practice with input from national and local experts in order to eradicate anti-Black racism – whether conscious or unconscious;

b. A Human Rights Monitoring & Advocacy programme – that would support people in safely filing third party police complaints;

c. A Community Justice Legal Defense programme that would enable African Nova Scotians to defend against police abuses;

d. An African Nova Scotian Court Worker and Restorative Justice Program

e. An Incarceration Support/Reintegration Program

f. Forensic Assessment & Treatment services

g. Public Education/Youth Development/Prevention Programming

9. That additional ANSDPAD Coalition recommendations be considered once the Coalition has reviewed, discussed and considered the final independent report with Coalition members and other African Nova Scotians across the Province.

Moratorium

The ANSDPAD Coalition acknowledges that you placed a moratorium on street checks on April 17th, 2019 and that you directed the police and RCMP to cease using street checks as a quota system and for performance evaluations. The Coalition recognizes these actions as efforts to address the illegal and harmful effects of street checks.

It is not clear, however, that the moratorium has resulted in any changes to police practice. For example, we know of at least two problematic stops of African Nova Scotians that happened within days of the announced moratorium. Perhaps more importantly, the language of the actual moratorium directive does not appear to curb street checks. Specifically, paragraph 4(b) of the directive says that the moratorium “does not apply… to police inquiries into suspicious activity…” In other words, police can continue to engage in street checks to inquire into suspicious activity even though such action is not authorized by Canadian law. The pre-existing HRP Street Check Policy (Department Order #17-08) allows for street checks if an officer “observes a person or vehicle in a location, at a time and/or under circumstances that suggest would be of significant to future investigations.” That policy also exists in the absence of law authorizing such police power.

During the last Wortley Report Action Planning Working Group meeting, no police or Department of Justice representative could explain how the language of the moratorium directive would prevent the street checks that were previously allowed under the HRP policy.

Consequently, we have a number of additional questions for the Department of Justice.

1. In light of the law (statutory, constitutional and common law) governing police powers, what law authorizes police to engage in street checks to inquire into suspicious activity?

2. What constitutes “suspicious activity”?

3. What are the current statistics on street checks since the moratorium began throughout the province? Will the Minister of Justice make public the current stats on information regarding street checks?

4. How is the Department of Justice monitoring street checks throughout the province?

5. How is the pre and post-moratorium street check data being used? Who has access to it?

6. When and how will citizens be advised if street check was collected about them and how that data was used?

7. When and how will the data be destroyed?

Wortley Report Action Planning Working Group

The ANSDPAD Coalition recognizes the difficulty and trauma that the African Nova Scotian Community continues to face within the criminal justice system in terms of racial profiling, criminalization, discrimination and over policing. The Coalition also acknowledges that the Department of Justice, HRP and the RCMP have indicated that they are trying to find the balance between overall community safety and addressing the issue of systemic anti-Black racism that has for decades negatively affected African Nova Scotians.

While the ANSDPAD Coalition maintains that street checks are illegal, harmful, and racially discriminatory and therefore should be banned, we recognize that street checks are just one part of a much larger issue of systemic anti-Black racism within the criminal justice system that needs to be addressed.

The ANSDPAD Coalition is in agreement that the African Nova Scotian Community and the Department of Justice should try to work together in order to find a resolution to the issue of street checks. However, we are concerned about the scope of the Wortley Report Action Planning Working Group, and the transparency and monitoring of the current moratorium on street checks. A number of elements need to be in place for that collaboration to be successful.

1. The Wortley Report Action Planning Working Group must widen the scope of its directives such that consideration of a street check ban is among the options that the Group is able to consider;

2. The group has to have access to independent legal advice on the legality of street checks;

3. The terms of reference, and respective roles and responsibilities have to be developed equitably; and

4. Community participation must be properly resourced.

As the African Nova Scotian Community and the Department of Justice seek to find common ground on the of issue street checks, the ANSDPAD Coalition has and will express our willingness to continue collaboration, cooperation and communication with our African Nova Scotia communities, organizations, and government.

Submitted on behalf of the:

African Nova Scotian Decade for People of African Descent Coalition (ANSDPAD)

Nova Scotia, June 2019

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