POLICE SEARCHES BASED ON SKIN TONE

Can The Cops Stop You Based On Nothing But The Colour Of Your Skin?
In A Word, Yes

Editor's note: This is the last in a series of guest columns on
privacy and legal issues by local lawyer D. James Anderson. Last week
he looked at who can let the police into your home or room. This week
he tackles searches based on racial profiling.

Let's take an unhappy detour into one of criminal law's heartbreaking
culs-de-sac: the one where, in some situations, it's OK for the
police to stop and question a person just because they have a certain
skin tone.

The authority for the police to detain a suspect was addressed in R.
v. Mann. Back in 2000, Winnipeg police received a dispatch call
regarding a break and enter. The suspect was described as a young
native man of average height and build. The Winnipeg police found the
accused, a young native man, within several blocks of the crime
scene. They did a pat-down and felt a lump in one of his pockets. The
officer reached in and found pot, Valium, and baggies.

One of the questions at trial was: did the police have articulable
cause to detain Mr. Mann? The court decided there was, and went on to
define articulable cause as a discretionary power (can you say
"hunch"?) that requires, first, that the investigating officer
believe on reasonable grounds, considering all circumstances, that
the individual is connected to a particular crime; and second, that
such a detention is necessary.

However, the scope of the search of Mr. Mann exceeded what was
permissible. If an officer objectively and justifiably believes that
a detained suspect might be armed and dangerous, a limited protective
pat-down search is also permitted. If not, then no.

Although the Supreme Court noted that "the potential for abuse
inherent in such low-visibility exercises of discretionary power are
all pressing reasons why the Court must exercise its custodial role,"
the police all too often have been happy to exploit the vague test
established by Mann. Consequently, Mann is often cited as
justification for stops based on little more than an individual's skin tone.

For example, in what became known as R. v. Greaves, Vancouver police
received a report of an assault committed by a black male accompanied
by several white males. The police later observed a black male
accompanied by two white males. Although the appearance of the black
male did not closely match the description of the alleged
perpetrator, the officers considered the grouping of a black male
with two white males suspicious. They stopped the group, and after 40
minutes an officer took Mr. Greaves' cellphone and called a number
labelled "Dad." The person who answered indicated that his son's
cellphone had been stolen 10 days earlier. The police then charged
Mr. Greaves with the robbery.

The B.C. Court of Appeal found that even though the group was walking
toward the liquor store (as opposed to walking away it), the people
in the group differed in number from the broadcast description of the
suspects, and the height, weight, age, and clothing of the persons
detained did not closely match the broadcast description, there was
articulable cause to detain the individuals. In spite of the fact the
subsequent search went beyond what was permissible, none of the
evidence was excluded. And yes, Mr. Greaves was convicted.

The Supreme Court has stated that there is no hierarchy of Charter
rights. Section 9 of the Charter - the right to be protected against
arbitrary detention - should not be subordinate to any other Charter
right. In practice, however, an unreasonable detention is accepted
essentially as an unfortunate cost of policing. Using the language of
Charter analysis, the decisions in Mann and Greaves indicate that a
limit on one's liberty based on race may be "demonstrably justified
in a free and democratic society" unless allowing the improperly
obtained evidence will bring the administration of justice into disrepute.

The message is clear: the police power to search can (note: not will)
trump a member of a racial minority's right not to be stopped just
because they're a member of a racial minority.

Not too long ago, a black man named Mr. Coward was walking down a
busy Calgary street when he was stopped by a cop and told that he
matched the description of a person (i.e., a black man) seen waving a
knife in the area. The cop asked him if he had a knife. Mr. Coward
said he did not, and would not consent to a search of his person (as
was his right). He was arrested, handcuffed, and searched in public.
When no knife was found, he was released. No charges were laid.

He later laid a complaint against the Calgary police alleging racial
discrimination, but the Calgary police disagreed. So did the Alberta
Human Rights Commission and the Alberta Court of Queen's Bench, who
found that while race is a prohibited ground of discrimination, it is
also a relevant descriptor.

So are a number of other things, but while the courts want more than
a description of a white person as "a white person," they are less
picky when it comes to minorities. Perhaps until they want more, the
minority man will be just that: only a minority man, and always a
possible locus for fear. Reasonable? You tell me.