SEARCH AND DETENTION AT SEA, BUT KEEPING A BALANCE

When a high-school principal in Sarnia, Ont., turned his school over
to the police for a good portion of the day to let a drug-sniffing dog
roam, he sent a terrible message to his students about what a
democracy should permit the state to do in pursuit of its goals. The
students were locked in their classrooms for up to two hours while the
dog and police did their work, intruding at random on the students'
personal property. For part of the day, that zero-tolerance school
must have felt like a police state.

It is good that the Supreme Court of Canada ruled this 2002 search
illegal yesterday, and refused to allow evidence of 10 bags of
marijuana and 10 magic mushrooms found in a backpack in the gymnasium
to be used against the student who owned it. But the court, like
Canadians generally, was torn over the appropriate standard for police
as they go about their work of detecting crime and protecting
communities. To a surprising extent, the court is at sea.

It's no wonder, then, that the police are unsure how far they may go
when called on to walk the streets near big-city schools, where
serious weapons have become a major problem. In a case that the
Supreme Court heard this week, an 18-year-old in Toronto, Donnohue
Grant, was convicted by a lower court of having a loaded revolver
under his coat, a revolver he voluntarily showed to police after three
officers, thinking him suspicious-looking, surrounded him near a
school and began chatting with him. A judge had ruled that the three
officers had illegally detained him, but that the illegality was
slight enough, and the offence serious enough, that the evidence of
the gun could be introduced into court.

The Grant case has prompted the defence bar and some law professors to
claim that the Charter's very existence as a meaningful protection for
individual rights is at stake. Yet it is clear that the actual
existence of young people is at stake in high-crime communities that
are rife with guns and knives. If the defence position held sway,
schools would be left vulnerable.

But how to square the two? If it is wrong to lock down students and do
a random search of their private property for drugs, why is it right
to allow evidence from a possibly illegal detention of a youth near a
school?

The drug search involved a major intrusion on rights for general
crime-prevention purposes. Drug trafficking is not a trivial crime,
but the presence of drugs poses no immediate danger. Guns do. Not only
did Toronto have a fatal shooting in a high-school hallway this year,
but a major study found an alarming penetration of weapons and
intimidation into schools. Whether the guns go off or not - Chekhov's
law suggests they eventually must - they destroy the atmosphere of
learning by sowing fear.

The Toronto police who approached Mr. Grant were keeping an eye out
for four nearby schools in a high-crime neighbourhood. Mr. Grant
stared strangely at them, and then fidgeted with his coat and pants.
Following instincts honed by experience, they approached and asked
questions such as "do you have anything you shouldn't?"

This is nothing like R v. Stillman, the 1997 precedent that the
defence bar fears will be trashed, in which police in New Brunswick
forced dental implements into a 17-year-old's mouth and used threats
so he would pull out his own hair for DNA evidence. In that case, the
Supreme Court ordered the evidence excluded from Mr. Stillman's trial.
The Toronto police who approached Mr. Grant, however imperfectly,
acted in good faith to prevent an imminent danger.

Charter rights are not guarantees of ideal justice, because they exist
in the real world. A random drug search is of small use if the price
is to render students rights-less. But holding police to an abstract
standard of perfection as they try to protect us against imminent
danger would give the Charter a bad name.