1. Arbitrary Detention
a. Random Stops of Motorists
In a series of three cases (Dedman in 1985, Hufsky in 1988, and Ladouceur in May 1990) the Supreme Court of Canada pronounced on the constitutionality of police random stopping of motorists. In Dedman, Mr. Justice LeDain, for the majority of the Court, held that the 1980 Ontario R.I.D.E. program, in which police deployed checkpoints to screen impaired drivers, did not impinge a Charter right - even though the police did not have the statutory authority to conduct a random stop. The reason was that driving is a "licensed activity that is subject to regulation and control for the protection of life and property."
A rather broad brush to give the police the power of arbitrary detention. You need a license for almost everything nowadays, and hey, if safety is of concern why not just have eveyone ordered home by 10p.m.?
Mr. Justice LeDain also delivered the unanimous opinion of the Supreme Court in Hufsky, where the constitutionality of another Ontario police practice - spot check random stops - was reviewed. Unlike the R.I.D.E. program in Dedman, at issue in Hufsky was more than a search for impaired drivers. The random stops during these spot checks had a broad range of purposes, including checking for insurance papers and for the vehicle’s mechanical fitness. Mr. Justice LeDain said that the absence of police guidelines meant that the stops constituted arbitrary detention in violation of section 9 of the Charter, since the decision to stop a vehicle was made absolutely at the discretion of the police. That being said, however, his Lordship considered that the Charter limit imposed by the Highway Traffic Act was demonstrably justified in the interest of public safety. Again, for the Court, it was significant to note that driving could not be considered a fundamental right but was rather "a licensed activity subject to regulation and control."
Huh? Let's see, it violates the Charter, but it's allowed because again, it's a licensed activity and it's in the interest of public safety. Well, so is disarming us and sending us home by 10p.m.
In Ladouceur, at issue was the Ottawa police’s random stopping of a vehicle for essentially no reason and not as part of either an organized or spot check program. The Supreme Court split 5-4 in holding that this was an arbitrary stop that, following the Hufsky decision, was in violation of section 9 of the Charter. The stopping was not ruled to be unconstitutional, however, because it was a reasonable limit, demonstrably justified in a free and democratic society. The dissenting four justices agreed in the result, although they felt that allowing such a practice went beyond what the police should be enabled to do and gave them an unlimited right to stop vehicles.
Well, at least 4 out of 5 believe in a modicum protection from the authorities.
In November 1992, the Supreme Court of Canada had occasion to review the extent of police powers over motorists detained at random check stops. In Mellenthin v. The Queen, the Supreme Court decided that visual inspection of vehicles with a flashlight was necessarily incidental to a check stop program carried out after dark. However, "a check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over. Unless there are reasonable and probable grounds for conducting the search, or drugs, alcohol or weapons are in plain view in the interior of the vehicle, the evidence flowing from such a search should not be admitted."
Having our protections from abuse by the authorities diminished will in no way enhance public safety, as it is, our charter isn't worth the paper its written on as pressure groups and authorities lobby to have it re-interpreted and judges gladly oblige. As laws start to favour more intervention by the state, especially with the benevolent sounding reason of "public safety and security", it is time to start worrying. Throw enough spaghetti at the wall and some is sure to stick.
