» N.S. Books
October 25th, 1998.
"Checks: Random and Screening."
We continue to deal with the law that governs the search warrant here in Canada and the protections afforded by section 8 of the Canadian Charter, in particular, the legality of the police stopping a citizen and doing a check, a search, an arrest (really) either on a random basis or in a systemic screen. The perfect example is when the police simply stop the operator of a motor vehicle just to check things out, where the police constable has no reason to believe that a crime is being committed by the operator.
So, when a police constable stops a person, that constable must have formed the opinion, on reasonable grounds (reasonable grounds that he may be obliged to state in a court room should he get sued by the citizen) that the stopped person was involved, or is involved, in the commission of a crime - that's the law in Canada. However, it is my observation that police do screen motor vehicle traffic; and, it doesn't seem to bother too many that, in so doing, the police are likely breaking the law. I have been stopped in a screen, usually on the excuse that the police are checking "safety stickers." What would likely be trotted out in a court by the state paid lawyers hired to defend the police in any action against the police, is that the checks (random or otherwise), are supportable under the terms of section 1 of the Canadian Charter, viz., that the rights of Canadians are not guaranteed where it "can be demonstrably justified in a free and democratic society" that such checks are necessary. While the courts will recognize that there are things that the police must do and are justified, even though they tread on a citizen's rights, such police actions, the court would severely limit. Therefore, I am of the view that police checks, without specific and well reasoned grounds about a particular crime, would not be allowed, even though some justification might be made that such checks might reduce highway traffic accidents.
"A [motor vehicle] check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over. Unless there are reasonable and probable grounds for conducting the search, or drugs, alcohol or weapons are in plain view in the interior of the vehicle, the evidence flowing from such a search should not be admitted."1
The courts, incidentally, will not accept from the police an excuse that a warrantless search was carried out, no matter how limited, simply because there was a prospect that relevant evidence may be uncovered by the search. The Supreme Court of Canada has been quite clear on this - for the police, NO Fishing is Allowed!
In a 1993 Supreme Court of Canada case3, after quoting this passage, Justice Sopinka proceeded:
"The problem is with the stipulation of a reasonable belief that evidence may be uncovered in the search. Here again it is useful, in my view, to adopt a purposive approach. The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant's reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the State and limit the right of the individual to resist to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure."2
"This passage underscores the need to protect individuals against unreasonable searches in the form of 'fishing expeditions' by the state. This court established in Hunter that a standard of credibly based probability rather than mere suspicion should be applied in determining when an individual's interest in privacy is subordinate to the needs of law enforcement."
- For more, see the following commentaries:
- The Police and A Citizen's Rights - October 4th, 1998
- The Police and The Search Warrant - October 11th, 1998
- The Police and Wire Taps - October 18th, 1998
- The Police and Police Checks - October 25th, 1998
- The Police and Entrapment - November 1st, 1998
1 Cory, J., R. v. Mellenthin,  3 S.C.R. 615; 16 C.R.(4th) 273,281.
2 Dickson, J., in Hunter, at p. 658 D.L.R.
3 Baron v. Minister of Nat. Rev.,  1 S.C.R. 416.
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October, 1998 (2019)