POLICE NEED REASONABLE GROUNDS TO DETAIN SUSPECTS

Supreme Court decision on legality of searches doesn't grant police
arbitrary powers

Re: "Police gain new power with ruling," Letters, July 29.

As the police officer and lawyer who argued the case before the
Supreme Court of Canada I believe it is necessary to correct several
points in Michael Cust's letter.

He states that police "now have the power in law to tackle, cuff, and
jail people who choose not to speak with them and walk away ... the
ruling has, in effect, placed our rights to freedom from arbitrary
arrest and freedom from arbitrary search and seizure halfway between
true freedom and overt totalitarianism."

The Supreme Court's ruling does not give the police "arbitrary" power
to detain any person. Citizens remain free to walk, run or drive
without fear that the police can stop and detain them at will. Far
from "arbitrary," police may only detain a person when they have
reasonable grounds to suspect that the person is connected to a
particular crime and that detaining them is necessary for further
investigation.

Cust's assertion that detained persons stand to be arrested if they do
not speak to police is simply incorrect. The Supreme Court expressly
ruled that an investigative detention "...does not impose an
obligation on the detained individual to answer questions posed by the
police."

Lastly, Cust's concern that the Supreme Court has granted police
arbitrary search powers is unfounded. What the court did say was that
"...where a police officer has reasonable grounds to believe that his
or her safety or that of others is at risk, the officer may engage in
a protective pat-down search of the detained individual." Such a
search can only take place if the police officer first had the grounds
necessary to detain the person.

In investigative detention situations, police officers are dealing
with someone that they reasonably suspect of being involved in recent
criminal activity. Surely, police should be able to protect themselves
in these situations. While I did argue for an automatic right to
search people -- not any person -- subject to an investigative
detention to protect the police, the public and the detainees
themselves from weapons, the Supreme Court granted the lesser power
explained above. It's important to note that even though an automatic
right to search for weapons exists for persons arrested, such an
automatic right was not granted in detention situations, even though
the same risks exist in both scenarios.

Sgt. Greg Preston, EPS legal adviser

Edmonton