PULL OVER? WHY?

Any city dweller with the misfortune to live near a crack house knows of
the woes that brings: unpleasant neighbours, a steady trickle of
undesirables showing up day and night, constant police attention and
fallen property values. For residents of Kitchener, Ont., a court ruling
last week seemed to add further insult.

A couple of years ago, a police officer stopped a 52-year-old man
leaving a Kitchener residence reputed to be a drug den. The man told the
officer he had no valid driver's licence. He was arrested and charged
with driving while under suspension. He was also allegedly found to have
several grams of crack cocaine, resulting in additional charges.

When the case reached the court, all the charges were dismissed. The
officer had conducted "an improper investigative [search]" amounting to
a "serious" violation of the suspect's Charter rights, Judge Colin
Westman ruled, in a judgment that might at first glance appear
astonishingly deferential to the rights of the accused rather than those
of everyone else.

The judge's reasoning was nonetheless sound. Despite what the
policewoman found, she had no reason to stop the man in the first place.

An unrelated case that, by coincidence, also reached court in Kitchener
last week underscored the same principle. A 65-year-old motorist had
been pulled over at a gas station as police pursued a tip about a stolen
car. Under scrutiny, the driver was allegedly found to have been
drinking. He too was charged.

That charge didn't hold up either, Judge Elliott Allen concluded in
acquitting the man. Under Ontario's Highway Traffic Act, police on the
lookout for impaired driving can stop motorists at random -- as part of
a roadside check program, for example, or perhaps outside a bar if there
are signs a driver is intoxicated -- provided that is the real reason
the person is detained. Here, as the arresting officer conceded, police
were on what amounted to a fishing expedition.

The connecting thread is that it is not good enough for police to detain
and search people simply because they seem suspicious. Under the law,
there must first be "reasonable and probable grounds" for doing so. As
both judges made clear, the law means exactly what it
says.

However shady the alleged crack smoker may have seemed as he drove away,
a crack house is not a bar, so there was no reason to suppose he had
been drinking. However suspicious the car of the allegedly impaired
driver may have been, the man had given police no cause to pull him
over.

It is hard not to feel empathy for the police and their motives in cases
such as these. Few citizens question the importance of cracking down on
drunken driving. Few want a crack house in their neighbourhood. Yet
there is a larger issue: Canadians' protection against arbitrary arrest.

Twenty years ago, both sets of charges would probably have stood up. But
as police by now understand well, the Charter of Rights and Freedoms has
real teeth. And, in the same way that it is the Ernst Zundels of the
world who test our affirmed belief in free speech, the constitutional
rights of drug users and impaired drivers must also be defended.

The two judges should be commended.