STRIPPED OF THEIR RIGHTS

Police Commission Rules It Was OK For Cops To Look For Drugs On Two Young
Girls, But Society Shouldn't Agree

At the Nova Scotia Police Commission, the wheels of justice grind slowly,
and they grind exceeding coarse. Nearly two years ago, in January, 2000,
three Halifax police officers executed a warrant to search a Maitland
Street dance hall for a large quantity of the illicit drug ecstasy, thought
to be hidden behind a ceiling tile. They found nothing.

This shouldn't have come as a big surprise. The warrant was based on flimsy
evidence from an informant police themselves described as "of unknown
reliability."

In their frustration at not finding the big stash they hoped for, the
officers proceeded to strip-search everyone in the hall. Thirty-four
citizens, mostly young people waiting to attend a rave, underwent
humiliating rest-room strip-searches that likewise turned up nothing.

Halifax lawyer Walter Thompson promptly filed a complaint on behalf of two
of young women. (Disclosure: Thompson acted under the auspices of the
Canadian Civil Liberties Association, on whose national board of directors
he and I both serve.)

The women sought no sanction against the officers, simply a ruling that
when cops have a warrant to search a particular building, and the search
comes up empty, they can't unilaterally expand the warrant to justify
strip-searching everyone who happens to be present.

They based their complaint on Section 8 of the Charter of Rights and
Freedoms, which guarantees every Canadian — regardless of age or fondness
for loud music — "the right to be secure against unreasonable search and
seizure."

The commission referred the complaint to the Halifax Regional Police.
Though there was no substantive dispute as to the facts, the HRPD
investigator asked for and received an extension on the 90 days the law
gives an impugned force to respond. After six months, HRPD concluded its
officers had done nothing wrong.

Still the commission dawdled. It finally held a hearing last May, 17 months
after the event. It took another four months to produce a report that fills
all of nine pages, doubled spaced.

The decision is a slam dunk for the cops.

"Although common sense dictated that many of those found-ins would
certainly have to be innocent of any wrongdoing," it was OK to subject them
to intimate searches. The commission found reasonable grounds to suspect
everyone present because, once the ecstasy proved not to be where the
warrant said it would be, "the only other logical place for those drugs to
be secreted would be on some of the found-ins."

That may be one logical possibility, but it's hardly the only one. The
ecstasy could have been removed from the dance hall before police got
there. The ecstasy might never have existed in the first place. The only
person who claimed to have seen the drugs, an informant of "unknown
reliability," may have been unreliable. He may have had a grudge against
the rave organizer. There are dozens of possible reasons why police failed
to find what they were looking for.

Civilized societies regard security of the person as a fundamental value
worthy of stringent protection. That's why police in free societies can't
arbitrarily search large numbers of people on the mere suspicion that some
of them may be doing something wrong. They have to have reasonable and
probable grounds to suspect specific people of specific crimes. The more
intrusive the search, the more stringent the protection against arbitrariness.

Yet the commission has given police executing fruitless search warrants
carte blanche to strip-search everyone present — even dozens of people,
even if it's a public place, even if reason dictates that most of them must
be innocent of any wrongdoing.

Even more troubling is the commission's cavalier refusal to apply the
Charter of Rights and Freedoms. The commission acknowledges the cops'
apparent invasion of privacy rights as guaranteed in Section 8, but says it
lacks jurisdiction to apply the charter. Only a court can do that, says the
commission.

This is strange. The charter is part of the law of Canada. If the
commission is not to apply the law to the actions of police, how else it is
supposed to judge them?

There is a further Catch 22. The commission says only a court can apply the
charter, but the Police Act allows no appeal to the courts from a
commission ruling.

That doesn't literally mean there no appeal is possible, but it creates a
huge obstacle. The complainants would have to persuade a court that the
commission misconstrued its jurisdiction so grossly as to demand redress.

"That begs all kinds of fuzzy academic questions that are entirely beside
the point," says Thompson. "I don't want to get caught up in all kinds of
administrative law gobbledegook."

If Thompson appeals, the case will likely bog down in exactly the kind of
technical irrelevancies government lawyers love to use to wear down
citizens with limited resources. Even aggrieved citizens whose rights have
been abused