Police can't 'fish' for evidence: top court
Bruce Cheadle
Canadian Press

July 23, 2004

OTTAWA - The Supreme Court of Canada has slapped a No Fishing sign over police trolling Canadian streets for suspects and evidence.

But a police organization spokesman said he doesn't believe Friday's ruling seriously hinders the cops from catching 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, said a majority of the seven-member bench.

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 in a majority decision that divided the high court 5-2.

"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 spokesman for the Canadian Association of Chiefs of Police, which intervened in the case, said the ruling was a "little disappointing'' but doubted it would impact 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, Ont.

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

The court agreed police were justified in stopping Mann as he walked down a Winnipeg street 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.

That didn't stop the justices, however, from taking a long, 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.

"The search must be grounded in objectively discernible facts to prevent 'fishing expeditions' on the basis of irrelevant or discriminatory factors,'' wrote Iacobucci.

Mann, a native, was walking in a high-crime area of Winnipeg when police approached him after reports of a break-in a few blocks away. After an officer felt something soft in the front pouch of his hooded sweatshirt, a search produced about 27 grams of marijuana and a number of empty plastic baggies.

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