ONTARIO MAKES CASE FOR RANDOM POLICE QUESTIONING

The Ontario government is seeking new powers for police to stop
people randomly and question them if officers are engaging in
"community policing" in high-crime areas.

An individual is not necessarily "detained," as it is defined in the
Charter of Rights and Freedoms, if stopped by police and asked
incriminating questions, Ontario government lawyers argue in
documents filed for a Supreme Court of Canada hearing next month.

"An officer's crime prevention role is complemented by the moral and
social duty resting on citizens to assist the police," write Crown
attorneys John Corelli and Michal Fair-burn.

The Public Prosecution Service of Canada, the Attorney-General of
B.C. and the Canadian Civil Liberties Association are among the
intervenors in the closely watched case.

The Supreme Court is expected to revisit a rule it established 11
years ago that said evidence obtained by police when people are
forced to incriminate themselves after their Charter rights have been
violated may not be used against them in a trial.

The April 24 hearing stems from an appeal filed by Donnohue Grant,
who was convicted of gun possession charges in 2004.

Grant was stopped by Toronto police a year earlier while walking
along a street in the middle of the day in the east end of the city,
near four schools with a history of criminal activity.

Two plainclothes officers testified that as they drove by Grant, who
was 18 at the time, he "stared" at them and "fidgeted" in a "suspicious" way.

A uniformed constable was asked to stop and question Grant. Soon, all
three officers were speaking to the young black man on the sidewalk.

Grant, who had no prior criminal record, was asked to produce
identification and answer questions for nearly 10 minutes, before he
admitted to possessing some marijuana and a loaded revolver.

The Ontario Court of Appeal found Grant was arbitrarily detained by
police. Yet it upheld the conviction and 18-month sentence despite
the Charter violation because police acted in "good faith" and the
"repute of the justice system would suffer," if the gun evidence was excluded.

The Ontario government is arguing that the Court of Appeal was wrong
when it concluded that police violated the rights of Grant when he
was stopped and questioned, even though he was not initially
suspected of committing a crime.

"In the context of community-based policing, the police have the
right and duty to approach any citizen and ask potentially
incriminating questions provided those questions are not accompanied
by a "direction or demand" to remain or accompany the officer for the
purpose of answering," states the Ontario Crown.

"By overemphasizing individual liberty interests, the court applied a
legal analysis that would turn most, if not all, inquiries by police
officers into detentions."

While individuals have the right to refuse to answer an officer's
questions, the "governing principle" should be that "crime prevention
is a collective responsibility," the Ontario Crown writes.

It urges the Supreme Court to endorse a case-by-case approach to the
issue and "to avoid overly-critical second-guessing" of decisions
made by police.

The Ontario government is seeking a "radical recalibration" of the
right not to be arbitrarily detained and it would give police
"extraordinary leeway to conduct field interrogations free of any
Charter scrutiny," responds Jonathan Dawe, the lawyer for Grant.

Police conduct should not be "hidden from full Charter scrutiny under
the anodyne label of community-based policing," states Mr. Dawe in
his written arguments.

While Grant did not argue he was racially profiled, "there is a
widespread perception this tactic is used disproportionately against
visible minority youth," notes Mr. Dawe.

"The potential for this and other forms of abuse during discretionary
police stops is a matter of great concern which should continue to
shape the law in this area," he adds.