STONER SPOTCHECK

Naive Supreme Court Keeps Giving Cops More Search Powers They Can
Abuse

The ninth annual hempfest celebrations in the woods outside Sault Ste.
Marie from August 23 to 26 attracted the unwanted attention of some
special guests: the police.

Although no highway safety problems have been associated with Hempfest
in the past, the police set up a RIDE checkpoint staffed by some 20
officers to stop vehicles entering and leaving the festival grounds.

After three days of vehicle stops, no impaired driving charges were
laid, but more than 30 minor drug charges were laid against
festival-goers who were stopped, questioned and searched.

This quasi-military intervention clearly signals a slow return to an
American-style war on drugs.

But I find myself more troubled by the assumption made by the police
that they can set up highway roadblocks wherever they see fit and
arbitrarily detain whomever they please.

Blame the Supreme Court of Canada, which continues to expand police
powers without any recognition of the fact that, when it gives an
inch, the cops will take a mile.

Cops can't just stop a vehicle for no apparent reason. This amounts to
arbitrary detention contrary to Section 9 of the Charter.

The Supreme Court gave the police the power to conduct random spot
checks and RIDE programs in the 90s solely for the purpose of checking
cars' mechanical fitness and drivers' sobriety.

The Supremes concluded that the carnage impaired drivers cause on the
road made the checks a reasonable limit on individual rights.

Of course, the police immediately expanded this new power to conduct
random spot checks for drug offences and other crimes, to the point
that the Supreme Court felt compelled to remind police forces years
later that "random spot programs must not be turned into a means of
conducting either an unfounded general inquisition or an unreasonable
search."

Like an old dog that cannot learn new tricks, the Supreme Court made
repeated its mistake this summer by giving its seal of approval to
police roadblocks without setting any real limitations on the power.

On the one hand, the decision seems sensible. The police received a
911 call indicating that a number of men outside a Toronto club were
waving guns. The caller provided descriptions of several vehicles.
Within minutes, the police set up a roadblock in the club's parking
lot.

The first vehicle stopped led to the discovery of handguns, but the
vehicle itself did not match any of the 911 caller's descriptions, a
fact that led the Ontario Court of Appeal to rule the detention of the
suspects arbitrary.

The Supreme Court, however, concluded that it would be an unnecessary
burden on the police to require them to exercise fine judgment in
these circumstances, and that a blanket and indiscriminate roadblock
in this situation was reasonably necessary.

I think the Supreme Court was right to favour the blanket roadblock.
It's hard to argue against the nature of the police conduct in these
circumstances. Most people would have considered the police derelict
in their duty if they hadn't responded to a gun call in this fashion.

But the Court placed no discernable limits on the exercise of police
power.

I would assume that the Supreme Court believes the police would only
use their roadblock power in cases of imminent harm and danger, but
it's hard to believe that the leading jurists of the land could be so
naive.

The Hempfest roadblock had nothing to do with impaired driving, gun
offences or any other serious threats to public order. The police will
slowly stretch this roadblock power to the point where it bears little
relationship to its public safety rationale. The Court simply fails to
recognize that rights are never extinquished in one dramatic
explosion. Rather they gradually disappear through incremental erosion.

When a court grants carte blanche power to the police, it is
effectively giving the police the tools to begin dismantling our
Constitutional rights.

Unfortunately, the Supreme Court will probably not notice until a
police roadblock is set up at the entrance to the courthouse parking
lot.

Alan Young is a professor of law at Osgoode Hall.