Pubdate: Thu, 23 Apr 2009
Source: See Magazine (Edmonton, CN AB)
Copyright: 2009 SEE Magazine
Author: D. James Anderson
Bookmark: (Racial Issues)


Can The Cops Stop You Based On Nothing But The Colour Of Your Skin? 
In A Word, Yes

Editor's note: This is the last in a series of guest columns on 
privacy and legal issues by local lawyer D. James Anderson. Last week 
he looked at who can let the police into your home or room. This week 
he tackles searches based on racial profiling.

Let's take an unhappy detour into one of criminal law's heartbreaking 
culs-de-sac: the one where, in some situations, it's OK for the 
police to stop and question a person just because they have a certain 
skin tone.

The authority for the police to detain a suspect was addressed in R. 
v. Mann. Back in 2000, Winnipeg police received a dispatch call 
regarding a break and enter. The suspect was described as a young 
native man of average height and build. The Winnipeg police found the 
accused, a young native man, within several blocks of the crime 
scene. They did a pat-down and felt a lump in one of his pockets. The 
officer reached in and found pot, Valium, and baggies.

One of the questions at trial was: did the police have articulable 
cause to detain Mr. Mann? The court decided there was, and went on to 
define articulable cause as a discretionary power (can you say 
"hunch"?) that requires, first, that the investigating officer 
believe on reasonable grounds, considering all circumstances, that 
the individual is connected to a particular crime; and second, that 
such a detention is necessary.

However, the scope of the search of Mr. Mann exceeded what was 
permissible. If an officer objectively and justifiably believes that 
a detained suspect might be armed and dangerous, a limited protective 
pat-down search is also permitted. If not, then no.

Although the Supreme Court noted that "the potential for abuse 
inherent in such low-visibility exercises of discretionary power are 
all pressing reasons why the Court must exercise its custodial role," 
the police all too often have been happy to exploit the vague test 
established by Mann. Consequently, Mann is often cited as 
justification for stops based on little more than an individual's skin tone.

For example, in what became known as R. v. Greaves, Vancouver police 
received a report of an assault committed by a black male accompanied 
by several white males. The police later observed a black male 
accompanied by two white males. Although the appearance of the black 
male did not closely match the description of the alleged 
perpetrator, the officers considered the grouping of a black male 
with two white males suspicious. They stopped the group, and after 40 
minutes an officer took Mr. Greaves' cellphone and called a number 
labelled "Dad." The person who answered indicated that his son's 
cellphone had been stolen 10 days earlier. The police then charged 
Mr. Greaves with the robbery.

The B.C. Court of Appeal found that even though the group was walking 
toward the liquor store (as opposed to walking away it), the people 
in the group differed in number from the broadcast description of the 
suspects, and the height, weight, age, and clothing of the persons 
detained did not closely match the broadcast description, there was 
articulable cause to detain the individuals. In spite of the fact the 
subsequent search went beyond what was permissible, none of the 
evidence was excluded. And yes, Mr. Greaves was convicted.

The Supreme Court has stated that there is no hierarchy of Charter 
rights. Section 9 of the Charter - the right to be protected against 
arbitrary detention - should not be subordinate to any other Charter 
right. In practice, however, an unreasonable detention is accepted 
essentially as an unfortunate cost of policing. Using the language of 
Charter analysis, the decisions in Mann and Greaves indicate that a 
limit on one's liberty based on race may be "demonstrably justified 
in a free and democratic society" unless allowing the improperly 
obtained evidence will bring the administration of justice into disrepute.

The message is clear: the police power to search can (note: not will) 
trump a member of a racial minority's right not to be stopped just 
because they're a member of a racial minority.

Not too long ago, a black man named Mr. Coward was walking down a 
busy Calgary street when he was stopped by a cop and told that he 
matched the description of a person (i.e., a black man) seen waving a 
knife in the area. The cop asked him if he had a knife. Mr. Coward 
said he did not, and would not consent to a search of his person (as 
was his right). He was arrested, handcuffed, and searched in public. 
When no knife was found, he was released. No charges were laid.

He later laid a complaint against the Calgary police alleging racial 
discrimination, but the Calgary police disagreed. So did the Alberta 
Human Rights Commission and the Alberta Court of Queen's Bench, who 
found that while race is a prohibited ground of discrimination, it is 
also a relevant descriptor.

So are a number of other things, but while the courts want more than 
a description of a white person as "a white person," they are less 
picky when it comes to minorities. Perhaps until they want more, the 
minority man will be just that: only a minority man, and always a 
possible locus for fear. Reasonable? You tell me.
- ---
MAP posted-by: Jay Bergstrom