DRUG LAWS MAKE THE BODY A BATTLEGROUND

Reasonable Doubt

Human touch can be healing, consoling and arousing. It can also be sickening
when it is unwanted. In fact, touching another without consent is a crime.

Last week, the Supreme Court of Canada grappled with the issue of when
Officer Friendly is authorized to touch a suspect in the course of police
business.

Philip Mann was seen in the vicinity of a Winnipeg late-night break-in. He
fit the description of the suspect so the police briefly detained him and
conducted a pat-down search. Feeling a soft object, they reached into a
pocket and found an ounce of marijuana.

If the police did not have authority to let their fingers do the walking all
over the body of a suspect, then these officers have committed an assault.

Historically, the law has been deceptively simple when it comes to
police-citizen grope-fests. If the police had reasonable and probable
grounds to believe someone committed an offence, they could arrest and
search his body incidental to arrest. If there were no legitimate grounds
for arrest the police would have to let the suspect go even if their
Spidey-sense was tingling.

In the mid-1990s, our courts created a middle ground by allowing police to
briefly detain an individual merely upon a reasonable suspicion that a crime
has been committed. But until the Mann case, no Canadian court had ruled
definitively on the body search part of the process.

In the Mann case, the suspect was properly detained based upon
identification evidence that gave rise to a reasonable suspicion. Now the
court had to decide if this new police power includes searching a person's
body during the brief period of detention.

The court decided a power to search incident to detention could only be
employed for protective purposes. It is okay to pat-down the suspect to
ensure no weapons are concealed on his body or in clothes, but the police
may not extend the pat-down to a shake-down in order to investigate some
soft, non-threatening item in the suspect's pants.

The ruling seems sensible. A pat-down is fairly non-intrusive. Surely the
police should not be left vulnerable when approaching a suspect on the
street. A little touching upfront makes for a more relaxed conversation
afterwards. I preferred the old rule whereby the touching could not commence
until there were grounds for arrest, but in a crazy world where weapons are
carried as a badge of honour, the pat-down is a better response than
routinely allowing the police to approach all suspects with their guns
drawn.

Beyond frisking for weapons, there is only one other reason that the police
often try to further probe the body for evidence: Our drug laws provide the
rationale for treating the body like a crime scene. People do not deposit
stolen property or weapons of mass destruction in their bodily orifices but
drug traffickers do. In light of this reality, modern policing can often
resemble a dental or rectal examination.

In one case from British Columbia, plainclothes policemen jumped on a
suspected drug trafficker and, through a combination of punches, chokeholds
and jamming of handcuffs into the suspect's clenched teeth, they dislodged
from his bloodied mouth a baggie containing a quarter-gram of cocaine.

In another case, uniformed police officers entered a Toronto doughnut shop
and strip-searched a suspected drug trafficker. While the suspect was bent
over, officers put on dishwashing gloves and tried to remove a small baggie
protruding from the suspect's anus.

There is a "super loo" at Pearson airport. People suspected of smuggling
drugs by swallowing the contraband can be detained with the magical toilet
that can separate feces from drug-filled condoms. The wonders of technology.

We would not need this technology but for our misinformed war on drugs. I
guess diamond smugglers might also swallow their booty when passing borders
but I am certain the police rarely choke-hold or anally probe suspects
unless on the scent of illicit drugs.

Even though our Supreme Court has now ruled the police can only search the
body of a suspect for protective reasons, it is naive to believe they will
automatically conform to the ruling. As long as we maintain our criminal
drug laws, it will be hard for police to resist the temptation to seize a
potential windfall from a suspect. They know most people plead guilty and
they know court rulings are malleable and subject to interpretation. They
are prepared to take their chances in court even if suspects assert that
their constitutional rights had been violated.

If we really want to stop bodily intrusions by the police, we have to
rethink our approach to illicit drug use. When drug use is criminalized, the
body becomes the battleground for police-citizen interactions. This is a
high price to pay for maintaining prohibitory drug policies which do not
have any significant impact on rates of illicit drug consumption.

Statistics Canada has announced that three million Canadians smoked pot last
year. The law never deterred these people but they do present a large
population of potential suspects for police strip searches and proctology
exams.