The Ford government says it wants to give police more powers to stop and search vehicles without a search warrant in a new effort to stop car thieves, but some criminal lawyers say the move could violate people’s rights and lead to racial profiling.
New legislation tabled May 1 could amend the Highway Traffic Act to allow police to stop and search cars suspected of having key fob programming devices and some smartphone applications to steal cars.
But while the bill says police would need reasonable grounds to carry out a search, SuJung Lee, an associate criminal lawyer with Daniel Brown Law, says it could nevertheless lead to an abuse of power.
“Wide discretionary authority by police, especially in the context of things like the Highway Traffic Act and traffic stops in general, are a breeding ground for racial profiling to occur,” she told CBC Toronto.
“In these moments, where there’s very little known about who the driver is, there’s not an ongoing investigation… It’s easy for biases that we all have, especially implicit biases, to seep into these types of interactions.”
According to the Canadian Civil Liberties Association, every year across the country, police arrest thousands of racialized people during random roadside stops. Many of those targeted are Black or Indigenous as a result of unconscious biases or stereotypes, the CCLA says.
In Ontario, police already have the power to stop and search vehicles under certain circumstances, including through the Cannabis Control Act to confiscate open packages of marijuana, for example. The current proposal is looking to expand search powers under the Highway Traffic Act.
The overpolicing of marginalized groups has been acknowledged by courts and reflected in research, says Theresa Donkor, a criminal defence lawyer at Rudnicki and Company who specializes in cases involving racial profiling.
“It makes those communities actually feel less safe,” Donkor said. “It makes them feel like they actually do not have the same rights as other individuals in Canadian society.”
Beyond concerns of how the proposed amendment could impact people of colour, Lee says the province may be acting unconstitutionally, noting the Highway Traffic Act was designed to regulate driving practices, not a way to go after other kinds of criminal offences.
“By endowing the [Highway Traffic Act] with search powers that are designed to root out auto theft, it’s taking on a criminal dimension that arguably oversteps the bounds of provincial jurisdiction, and that’s an area that I would suspect is going to come under criticism,” said Lee.
CBC Toronto contacted the province for comment on concerns over racial profiling and the constitutionality of proposed changes. Neither the Ministry of Transportation, Attorney General’s nor Solicitor General’s office provided a statement.
The move to expand search-and-stop power for police is more “political than legal,” said criminal lawyer Daniel Lerner.
“I don’t think this is going to really impact, in any significant way, stolen vehicles,” he said. “You need to look at the resources that [are needed], look at what is happening, look at why cars are being stolen and maybe, why is it so easy to steal cars?”
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Some car fob tech experts, including Auto Key Pro shop owner and operator Yaser Jafar, say the root problem is that car fob scanners and programmers are easy to buy online and that anyone can learn how to use through a YouTube or TikTok tutorial.
“You can get a tool as low as $400 or $500 to be able to do a good percentage of vehicles out there,” he said. “And that’s the scary part is once you know it goes into the wrong person’s hand.”
The lack of robust security features on vehicles and their key fobs has been an issue for years, says Jeff Bates, the owner of Lockdown Security, a company that sells and installs car electronics, including anti-theft systems.
“There’s a big onus on the vehicle manufacturers, though, to really address this loophole,” Bates said. “If they went back to [physical metal] keys, you would probably cut down auto theft by a magnitude of 80-plus per cent at this point.”
In an emailed statement, Innovation, Science and Economic Development Canada spokesperson Hans Parmar said the federal department is “considering comments received in developing any restrictions with respect to these devices and continues to work with Canadian companies, online retailers and the automotive industry on this issue.”
