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'Pockets Are Private,' Supreme Court Rules
Pubdate: Sat, 24 Jul 2004
Source: Ottawa Citizen (CN ON)
410c-832d-a6e27ab4473c
Copyright: 2004 The Ottawa Citizen
Contact: http://www.canada.com/ottawa/ottawacitizen/
Details: http://www.mapinc.org/media/326
Author: Janice Tibbetts, The Ottawa Citizen
'POCKETS ARE PRIVATE,' SUPREME COURT RULES
Police can no longer go on "fishing expeditions" by searching people
they stop on the street without reasonable grounds to suspect that
they pose a safety threat, the Supreme Court ruled yesterday.
The decision, which clears a young Winnipeg labourer of drug
trafficking charges, is the high court's first foray into the
constitutional validity of the routine police practice of briefly
detaining people for investigative purposes without arresting them.
The legal challenge once again thrust the court into balancing the
ability of the police to do their job and the civil rights of
Canadians to be reasonably free of state interference.
"Individual liberty interests are fundamental to the Canadian
constitutional order," Justice Frank Iacobucci wrote for the 5-2 majority.
"Consequently, any intrusion upon them must not be taken lightly,"
wrote the recently retired Judge Iacobucci.
The decision acquitted Philip Henry Mann, an aboriginal man who was in
the wrong place at the wrong time late one night just before Christmas
2000. Police, en route to a break-and-enter scene in a rough
neighbourhood, stopped him because he matched the suspect's
description "to the T."
Mr. Mann, then 21, was searched and police found an ounce of marijuana
in the front pouch of his sweatshirt.
"Individuals have a reasonable expectation of privacy in their
pockets," wrote Judge Iacobucci, overturning the Manitoba Court of
Appeal.
"I believe their search fell outside the ambit of what is
permissible."
The Charter of Rights protects Canadians against unreasonable search
and seizure, and gives them the right not to be arbitrarily detained
or imprisoned, and the right to be informed of the reasons for being
held by police.
Mr. Mann's lawyer, Amanda Sansregret, said she hopes the ruling will
curtail the "daily practice" of police searching people without
reasonable grounds to believe they were involved in a crime.
"It's going to put an end to fishing expeditions," she predicted. "I
think that routinely happens, and we've become a bit cavalier about
the fact that slowly, but surely, your rights to be secure from
unreasonable search and seizure have been eroded."
The Supreme Court invited Parliament to legislate appropriate practice
and procedure techniques for on-the-spot police searches to ensure
that they respect both individual liberties and officer safety.
A spokesman for the Canadian Association of Chiefs of Police said he
doesn't expect the ruling will be a major setback for officers,
particularly because the Supreme Court recognized for the first time
that temporary detentions are constitutional.
"It has not expanded our ability to do our job, but I don't think it's
taken away that much," said Greg Preston, an Edmonton police officer
and lawyer.
"It doesn't impede on our ability to detain people, which is very
important for us to do our job properly. But the balance favours
individual freedom slightly more than officer safety in these
scenarios. What the police were hoping for was a bit more."
The ruling will be meaningless unless governments set up independent
oversight agencies to audit police practices, said Alan Borovoy,
president of the Canadian Civil Liberties Association.
"Periodically, there is a disturbing dichotomy between what courts
promulgate and what police practise," said Mr. Borovoy. "The concern
is there is not in place a system for adequately accounting for how
the police behave and this judgment highlights the need for it."
The police power to briefly detain people without arresting them has
been upheld in lower courts throughout Canada, but yesterday's ruling
marked the first time the practice has been recognized by the Supreme
Court.
Under Canadian law, to be detained means to be stopped or kept
waiting, encompassing any situation in which a person does not feel he
or she is free to go.
The decision was the first major declaration on investigative police
searches since 1985, when the Supreme Court ruled that police have the
right to stop motorists at random and use breath tests to check for
drunkenness.
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