POLICE CAN'T 'FISH' FOR EVIDENCE

Top Court Upholds Man's Acquittal

Search Must Be for Reasonable Reason

OTTAWA--Police with reasonable suspicions have the power to detain
people temporarily but can't go into their pockets on "fishing
expeditions" for evidence, the Supreme Court of Canada ruled yesterday.

It was the first time the high court had examined an everyday police
practice that many law officers and prosecutors take for granted.

But a police organization spokesperson and even civil libertarians
aren't convinced the ruling will significantly change the way cops
catch crooks.

In the first such Charter of Rights ruling on an everyday police
practice, Canada's highest court guardedly agreed police may briefly
detain individuals for investigative purposes -- if they have
reasonable suspicions linked to a specific crime.

But police can't go on "fishing expeditions" in people's pockets for
evidence, the court said in a 5-2 decision.

The decision upholds a ruling by a trial judge in Winnipeg, who
acquitted Phillip Henry Mann of trafficking after police stopped him
on the street in relation to a nearby break-and-enter.

They found an ounce of pot in his sweatshirt pouch.

"Individuals have a reasonable expectation of privacy in their
pockets," Justice Frank Iacobucci wrote for the majority.

"The search here went beyond what was required to mitigate concerns
about officer safety and reflects a serious breach of (Mann's)
protection against unreasonable search and seizure."

A spokesperson for the Canadian Association of Chiefs of Police, which
intervened in the case, said the ruling was a "little disappointing"
but doubted it would affect police work.

Officers will need to be trained on the implications of the
ruling.

"If you're going to go into someone's pocket during a search, you
would have to have a strongly articulated reason (such as officer
safety)," said Frank Ryder, a detective chief superintendent with the
Ontario Provincial Police in Orillia.

"Really, they've endorsed at the Supreme Court level that we do have
the right to search for safety and to detain (individuals)."

And while it is significant that the court spelled out a number of
conditions for detaining individuals, Alan Borovoy of the Canadian
Association of Civil Liberties isn't convinced they will translate
into practical changes in police behaviour.

The vast majority of such police detentions and searches never come to
light, Borovoy said, so it will be difficult to gauge if there's a sea
change.

"We have learned that there is a disquieting dichotomy between what
courts promulgate and what police practice," he said.

The court agreed police were justified in stopping Mann as he walked
down a street in Winnipeg near midnight on Dec. 23, 2000.

Mann fit the description of a robbery suspect and was only three
blocks from the crime scene, making him a reasonable target for police
investigation. After an officer felt something soft in the pouch of
his hooded sweatshirt, a search produced about 27 grams of marijuana.

That didn't stop the justices, however, from taking a hard look at
what Iacobucci called "the unregulated use of investigative detentions
in policing, their uncertain legal status, and the potential for abuse
inherent in such low-visibility exercises of discretionary power."

The unwritten power of police to briefly detain people without charge
has been recognized by every provincial court in Canada, but the
Supreme Court had never examined the practice.

"Absent a law to the contrary, individuals are free to do as they
please," noted Iacobucci.

"By contrast, the police (and more broadly, the state) may act only to
the extent they are empowered to do so by law."

The ruling suggested Parliament might consider legislating a proper,
written balance between individual liberty and officer safety.

In the absence of such written guidelines, the court found that police
are entitled to do a pat-down search if they reasonably believe a
detained person presents a safety risk.

But reaching into someone's pocket because they feel something soft,
as happened in the Mann case, doesn't cut it, said the court.

Mann was acquitted at his initial trial after the judge said the
evidence was obtained illegally, but that judgment was overturned on
appeal.