Pubdate: Wed, 24 Oct 2001
Source: Daily News, The (CN NS)
Copyright: 2001 The Daily News
Contact:  http://www.canada.com/halifax/dailynews/
Details: http://www.mapinc.org/media/179
Author: Parker Barss Donham

STRIPPED OF THEIR RIGHTS

Police Commission Rules It Was OK For Cops To Look For Drugs On Two Young 
Girls, But Society Shouldn't Agree

At the Nova Scotia Police Commission, the wheels of justice grind slowly, 
and they grind exceeding coarse. Nearly two years ago, in January, 2000, 
three Halifax police officers executed a warrant to search a Maitland 
Street dance hall for a large quantity of the illicit drug ecstasy, thought 
to be hidden behind a ceiling tile. They found nothing.

This shouldn't have come as a big surprise. The warrant was based on flimsy 
evidence from an informant police themselves described as "of unknown 
reliability."

In their frustration at not finding the big stash they hoped for, the 
officers proceeded to strip-search everyone in the hall. Thirty-four 
citizens, mostly young people waiting to attend a rave, underwent 
humiliating rest-room strip-searches that likewise turned up nothing.

Halifax lawyer Walter Thompson promptly filed a complaint on behalf of two 
of young women. (Disclosure: Thompson acted under the auspices of the 
Canadian Civil Liberties Association, on whose national board of directors 
he and I both serve.)

The women sought no sanction against the officers, simply a ruling that 
when cops have a warrant to search a particular building, and the search 
comes up empty, they can't unilaterally expand the warrant to justify 
strip-searching everyone who happens to be present.

They based their complaint on Section 8 of the Charter of Rights and 
Freedoms, which guarantees every Canadian — regardless of age or fondness 
for loud music — "the right to be secure against unreasonable search and 
seizure."

The commission referred the complaint to the Halifax Regional Police. 
Though there was no substantive dispute as to the facts, the HRPD 
investigator asked for and received an extension on the 90 days the law 
gives an impugned force to respond. After six months, HRPD concluded its 
officers had done nothing wrong.

Still the commission dawdled. It finally held a hearing last May, 17 months 
after the event. It took another four months to produce a report that fills 
all of nine pages, doubled spaced.

The decision is a slam dunk for the cops.

"Although common sense dictated that many of those found-ins would 
certainly have to be innocent of any wrongdoing," it was OK to subject them 
to intimate searches. The commission found reasonable grounds to suspect 
everyone present because, once the ecstasy proved not to be where the 
warrant said it would be, "the only other logical place for those drugs to 
be secreted would be on some of the found-ins."

That may be one logical possibility, but it's hardly the only one. The 
ecstasy could have been removed from the dance hall before police got 
there. The ecstasy might never have existed in the first place. The only 
person who claimed to have seen the drugs, an informant of "unknown 
reliability," may have been unreliable. He may have had a grudge against 
the rave organizer. There are dozens of possible reasons why police failed 
to find what they were looking for.

Civilized societies regard security of the person as a fundamental value 
worthy of stringent protection. That's why police in free societies can't 
arbitrarily search large numbers of people on the mere suspicion that some 
of them may be doing something wrong. They have to have reasonable and 
probable grounds to suspect specific people of specific crimes. The more 
intrusive the search, the more stringent the protection against arbitrariness.

Yet the commission has given police executing fruitless search warrants 
carte blanche to strip-search everyone present — even dozens of people, 
even if it's a public place, even if reason dictates that most of them must 
be innocent of any wrongdoing.

Even more troubling is the commission's cavalier refusal to apply the 
Charter of Rights and Freedoms. The commission acknowledges the cops' 
apparent invasion of privacy rights as guaranteed in Section 8, but says it 
lacks jurisdiction to apply the charter. Only a court can do that, says the 
commission.

This is strange. The charter is part of the law of Canada. If the 
commission is not to apply the law to the actions of police, how else it is 
supposed to judge them?

There is a further Catch 22. The commission says only a court can apply the 
charter, but the Police Act allows no appeal to the courts from a 
commission ruling.

That doesn't literally mean there no appeal is possible, but it creates a 
huge obstacle. The complainants would have to persuade a court that the 
commission misconstrued its jurisdiction so grossly as to demand redress.

"That begs all kinds of fuzzy academic questions that are entirely beside 
the point," says Thompson. "I don't want to get caught up in all kinds of 
administrative law gobbledegook."

If Thompson appeals, the case will likely bog down in exactly the kind of 
technical irrelevancies government lawyers love to use to wear down 
citizens with limited resources. Even aggrieved citizens whose rights have 
been abused.
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