Pockets off limits to cops 

July 24, 2004

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 and even civil libertarians aren't convinced yesterday's ruling in Ottawa 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, 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."

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

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.

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

While it's significant that the court spelled out 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, he said, so it will be difficult to gauge any change.