PEOPLE AREN'T INFORMED OF RIGHTS: LAWYER

Canada Day Police Actions Put Scrutiny On Search And Seizure Regulations

After criticism over Canada Day searches of city buses by police,
Victoria lawyers say most people don't know their rights when dealing
with police.

Prof. Benjamin Berger of the faculty of law at the University of
Victoria said even his own students are surprised when they learn
that police don't have the blanket right to search a person's bag.

"Most people aren't terribly informed of their rights," he said.

On Canada Day, police stopped city buses and searched riders'
backpacks looking for alcohol, in an effort to control drunkenness at
the celebrations downtown.

For someone walking on the street or riding on a bus, the only way
police can search you against your will is if they have reasonable
grounds to think you have committed or are going to commit a crime.
Traffic offences or bylaw infractions are not crimes.

Richard Neary, a criminal defence lawyer, said that is why police
will often ask permission to search a bag.

A lot of people give their OK because they don't know they are
allowed to refuse a search.

"There is often the assumption that when police ask a question it is
more of a direction," he said.

Some people agree to the search because they want to help police;
others are afraid that refusing to provide information or give in to
a search will put them under greater suspicion.

He said if police want to search you or get information, but you
don't want them to, one option is to ask them politely whether you
are required to or if it is optional. They have to answer honestly.

One common case where you don't have to answer police questions is at
roadblocks where officers ask whether you've had anything to drink.
He said most people think they are required to answer the question.

Neary said you don't have any obligation to answer, and often the
answer is what police use as the reasonable and probable grounds to
suspect you are impaired. Then they can require you to provide a breath sample.

Even though it's not required, people often do answer because they
are afraid they will look as if they have something to hide.

By law, you have to provide your driver's licence, insurance and
ownership information to police when asked.

If police detain you because they have some evidence you have
committed a crime, but haven't arrested you, they are allowed only to
pat you down for weapons, but aren't allowed to go into your pockets
or search your bag, unless they have a good reason to believe there
are weapons there, Neary said. The purpose of their search is to make
sure you don't have anything that could harm them; it's not designed
as a fishing expedition for evidence.

The protection against being searched is covered under the Charter of
Rights and Freedoms. It says that everyone has the right to be free
from unreasonable search and seizure.

To help people understand their rights, the B.C. Civil Liberties
Association has produced an arrest guide that covers people's rights
when they are dealing with police.

Association president Jason Gratl, who is a criminal lawyer, said the
laws are often complex.

"Even lawyers have to research what the law is on search and
seizure," he said. The definition of search and seizure evolves with
new court decisions.

It is because of the law's complexities that when people are arrested
they have the right to talk to a lawyer right away. That is also why
it is difficult to create one set of guidelines for what a person's
rights are in every situation.

Gratl said information about individual rights when it comes to
searches should be part of the public-school curriculum. That way,
those graduating from high school would be better informed about what
they are and are not required to do under the law.

Because of the lack of information, Neary said, he has had clients
who have given in to searches or told police information thinking
they were required to when they really weren't.

A copy of the arrest handbook can be downloaded from the publications
section of the B.C. Civil Liberties Association website at www.bccla.org

READER INPUT

- - Do you think some intrusion on individual rights is warranted to
keep orderly crowds?

- - If not, what would you recommend as a way of keeping large events
safe and fun for everyone?

- - Would you mind having a personal search of your backpack or other
belongings in the larger interest of keeping an orderly crowd at public events?