One can easily imagine that the three members of the Ontario Court of
Appeal who wrote the R. v. Clayton ruling would feel they’d been given
a bit of a slap in the face by Justice Rosalie Abella and the Supreme
Court of Canada. In a fairly stinging rejection of the appeal ruling
excluding handgun evidence obtained during an informal roadblock, the
top court has listed toward giving more power to police over protecting
individuals’ civil liberties.
In excluding the evidence, the Ontario court said, “There was no
suggestion that anyone was in imminent danger.” It said the police
chose to ignore significant information from the 911 call that led to
the roadblock when they stopped two black men in a Jaguar from leaving
a strip club parking lot.
But
the Supreme Court said the police were justified under common law
powers to set up a roadblock. The 911 call provided “reasonable
grounds” to believe there were several handguns in a public place which
posed a “genuine risk” to the public. The test for determining whether
such an exercise of police power is justified is whether the roadblock
is “reasonably necessary,” wrote Abella.
Essentially, the top
court expanded police powers where guns may be involved. As Justice Ian
Binnie in his concurring reasons noted, the common law must adapt to
the evolution of society and as such the balance is tipping away from
civil liberties as gun problems “infect” society.
It seems that
much in the same way civil liberties seem to be violable in the name of
the “war on terror,” they’re going the same way in a similar war on
guns. But as commentators in our page 1 story note, the concern is
where the line gets drawn in these kinds of searches. In this case, the
officers stopped the men - whose car did not match the description of
the 911 call - because they were also black and leaving the parking lot
at the time when the gun call was received. No crime had yet been
committed and the two were not identified by the 911 caller.
But
what if those men didn’t have any guns; would the court still have
ruled that the search was justified? Will the same reasons stand up
where knives, box cutters, even baseball bats are concerned?
As
law professor Tim Quigley warns, an “end justifies the means”
philosophy to police powers will likely result in improper searches
that are never made public because a weapon was not found. And that
will make it hard to guard against them.
The biggest problem
with the Supreme Court’s ruling is not that it allowed this evidence,
but rather that it hasn’t set any guidance for such searches in the
future. The court will be looking at another high-profile case, R. v.
Grant, on the constitutionality of a search that turned up a concealed
handgun. In that case, the evidence/gun gathered from an 18-year-old
black man who was walking “suspiciously” was allowed by the Ontario
Court of Appeal because it said police did not overstep the bounds of
legitimate questioning. Will the Supreme Court somehow bring both of
the cases together and create constitutionally viable guidelines for
police searches relating to guns, or will the validity of such searches
continue to be decided on a case-by-case basis?
Either way,
Parliament should be stepping in and tackling to what extent the police
should have search powers, particularly at roadblocks in circumstances
where crimes have yet to be committed.
- Gail J. Cohen
