[ql06] Re: PUBLIC: When Can Drivers Be Halted?
- From: Steve Kennedy <2srk@xxxxxxxxxxxxxxxx>
- To: ql06@xxxxxxxxxxxxx
- Date: Wed, 12 Nov 2003 02:06:17 -0500
Ken Campbell wrote:
>Just reading through my PUBLIC materials for tomorrow.
>
>Let's play Charter challenge!
>
>Let's base it on a familiar U.S. Supreme Court issue in the article
>below, which is before the USSC again: When can the police stop your
>car?
>
>In the U.S.: Signs of drunk driving? YES. General search for drugs? NO.
>Informational checkpoints? DUNNO.
>
>(After all, someone showing signs of drunk driving -- they are not
>"arbitrarily detained." A drug sweep. That is arbitrary if the cars are
>randomly picked.)
>
>CANADA - STEP 1: Standing
>
>This is obviously an individual right, not a corporate one. For us to
>get standing, we either have to be the one stopped or we would have to
>demonstrate a "public interest standing" -- which I think would be easy,
>if the Ontario police announced a general campaign for arbitrary stops
>near crime scenes for "informational checkpoints."
>
Public interest standing (PIS) may be a difficult hurdle. Corbett's
comments regarding the court's liberalness in granting PIS apply mainly
to pre-Charter cases. As the casebook notes on p. 47, the SCC has lately
become particularly fond of asking that you prove there's no other way
into a court. You may have to go driving around trying to get yourself
"arbitrarily detained" in order to become party to a legal action.
Let's assume though that the cops take the obvious bait of a mature law
student, dressed in black, driving 20 times around a crime scene on a
large motorcycle.
>
>CANADA - STEP 2: WHAT ARE WE AFTER
>
>Assuming we get public interest standing, we'd probably only be after a
>s.52(1) declaratory matter, striking down any such police procedural
>program.
>
Why stop there! You're not a corporation--go for damages too. Bring on
s. 24(1).
>
>CANADA - STEP 3: GOVERNMENT ACTOR
>
>It's the police, so, yeah.
>
CANADA - STEP 3A: NOTIFY THE ATTORNEYS GENERAL
Notify all affected AGs if you plan to raise constitutional issues in
court (p. 49). The SCC has ruled that without notice it's "Hey, hey,
hey, hey, goodbye."
>
>CANADA - STEP 4: CHARTER ISSUE ITSELF
>
>Having met the opening criteria, we have to find some ground in the
>Charter. That would fall under the Legal Rights heading of the Charter,
>no? Ss. 7-14?
>
> [ ] Is it a s.8 Charter issue? Assuming the same
> situation below, does "search and seizure" cover
> stopping a car to ask if you've seen some element
> of a crime?
>
> [ ] Is it s. 9 -- are we being arbitrarily detained?
> (Or does s. 9 mean some more forceful by the
> police?)
>
>Let's do both.
>
>CANADA - STEP 5: GOVERNMENT RESPONSE
>
>The police would argue such a program is saved by s. 1.
>
>To be saved, there must be two elements:
>
> (a) Is it prescribed by law?
> (b) Is it "justified in a free and democratic society"?
>
>----------
>
>Just for my own satisfaction, I wonder what the situation in Canada is.
>I've never been stopped by the police while driving.
>
>I started with the Abridgement and found what seems to be a leading
>case -- R v. LADOUCEUR, [1990] 1 S.C.R. 1257. Doing a QuickCite, a see
>it's mentioned scores of times since it went to the SCC.
>
>The SCC appears to have said "anything goes" when it comes to police
>stopping cars. I mean, absolute discretion.
>
>DETAILS
>
> * Two police officers were on a stake-out of a suspect
> house when Ladouceur drove past the house.
>
> * Police followed and pulled him over.
>
> * The cops admitted they didn't think Ladouceur was acting
> unlawfully or in any way connected with the house under
> surveillance.
>
> * The sole purpose of the random stop was to ensure that
> Ladouceur's "papers were in order" and he had a valid
> driver's licence.
>
> * Ladouceur was asked to accompany officer to police car.
> Once in the car, he admitted his driver's licence was
> suspended.
>
>PRE-HOLDING
>
> * A justice of the peace found him guilty of driving while
> his licence was suspended, contrary to s. 35 of the
> Highway Traffic Act of Ontario.
>
> * The Provincial Court (Criminal Division) upheld the
> conviction.
>
> * Ontario Court of Appeal dismissed the further appeal. But
> it qualified its opinion, saying there was a Charter
> problem and the police power should be "read down" --
> limited to an organized program of stopping or roadblocks,
> where all vehicles are required to halt for some
> "articulable cause."
>
>SUPREME COURT: 5-4 decision, so close.
>
>Ignore the OCA worry about the Charter. Cory writes:
>
> "The officers' demand that the accused surrender his driving
> papers did not contravene s. 8. There had been no "seizure"
> within the meaning of s. 8. Section 8 might be brought into
> play, for example, in circumstances where the police, in the
> process of a random stop, found marijuana or an item of stolen
> property in the car.
>
> "Since it had been determined that routine check random stops
> violated s. 9 of the Charter, it was unnecessary to decide
> whether these random stops infringed s. 7 of the Charter.
>
> "While a routine check under the Highway Traffic Act is an
> arbitrary detention in violation of s. 9, the infringement is
> reasonably and demonstrably justified in a free and democratic
> society under s. 1. There was no need to read the section down
> or to qualify it in any way.
>
> "The power of a police officer to stop motor vehicles at random
> was derived from s. 189a(1) of the Highway Traffic Act, and was
> thus prescribed by law. The authority had also been justified
> by the court as a prescription of the common law."
>
>The last paragraph spells out the two-part test of s. 1 succinctly.
>
>However... I think this does one day deserve another Charter Challenge.
>Because I can't believe that Ladouceur would apply to informational
>checkpoints, like in the USSC matter. Not carte blanche. There would
>have to be some extra-Ladouceur limitation. Otherwise, how far could it
>go? One cannot imagine a "democratic society" have nuisance police
>roadblocks all over the place.
>
That was a 1990 decision. There's a whole new crew at the helm of the
SCC now. I wonder if some of them might sympathize with harried soccer
moms in minivans being stopped by police. Unfortunately for our test
case, the court is unlikely to sympathize with a mature law student on a
big bike - especially when that law student may have written nasty
things about them as a journalist. Let's assume, however, that we manage
to get the public interest group "Soccer Moms Against Security
Harassment" (SMASH) into court with intervenor status.
That leaves us with Trotter's good friend, Mr. David Edwin Oakes: Did a
little hash oil now and then . . . 10 vials for his own use . . .
"Honest, I'm no dealer. Why are you laying this reverse onus crap on me?"
Thanks to Mr. Oakes's efforts we have a "proportionality test" named
after him.
To limit rights and freedoms under s. 1 the government must show
(a) measures are rationally connected to the objective
(b) measures impair rights in question as little as possible
(c) effects of measures are proportionate to the objectives.
Recall that the SCC blew the reverse onus presumption of s. 8 of the
Narcotics Control Act out of the water at (a) - there was no rational
connection between possession of small quantities of narcotics and
intent to traffic. (What if a dealer starts the day with a "key," but by
the time the cops nab him he's down to a couple of dime bags? I guess
they have to come back at a better time.)
Anyway, I think we'd have grounds to argue that "informational
checkpoints" fail any one or more of the above measures. Of course, if
the objective of the info. checkpoints was "war on terror" (aka "war on
civil liberties") all bets are off.
>
>(Oh the practical value of all this education!)
>
>Ken.
>
>--
>I would have it written of me on my stone:
>"I had a lover's quarrel with the world."
> -- Robert Frost
>
>
Thanks for the entertaining discussion.
Steve
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