July 10, 2008 | In Law |
The Victoria Police, and other local police departments, are facing a complaint from the BC Civil Liberties Association, over their search and seizure policy on Canada Day (July 1).
Zelda Sun, a 35-year-old woman from Sooke (an outlying suburb of Victoria, BC) who brought this issue to the BCCLA’s attention, says that she was arbitrarily searched three times during her journey into downtown Victoria. Although she was not carrying alcohol or any other regulated substance, Sun observed police officers forcing people off buses, dumping out backpacks, and confiscating sealed liquor containers.
“That was a little bit excessive, and considering that it’s right in the Charter of Rights and Freedoms that everyone has the right to be secure against unreasonable search-and-seizure, I found it really ironic that this was happening on Canada Day,” Ms. Sun commented.
Police are defending their actions, claiming that the BC Liquor Control and Licensing Act permits them to search citizens and seize alcohol, upon mere suspicion of improper conduct.
Section 67 of the Act says that officers “who, on reasonable and probable grounds, believes that liquor is, anywhere or on anyone, unlawfully possessed or kept, or possessed or kept for unlawful purposes may … enter or search, or both, for the liquor where the peace officer suspects it to be, and may seize and remove liquor found and the packages in which it is kept.”
Victoria police Constable, Derek Tolmie, says that evidence from past years provided police with the “reasonable ground” necessary to assume that anyone carrying liquor in the downtown core was likely to consume it in public.
In making such a feeble excuse, however, police are denying the reality that the legal rights enshrined in the Charter of Rights and Freedoms (ss. 7-14), are intended to apply to individuals, and can only be limited by the actions of said individuals.
An individual’s right to be free from unreasonable search and seizure (s. 8 ), and even to carry a closed alcohol container in a public place, cannot be arbitrarily limited on the basis that other individuals possessed alcohol “for illegal purposes” in the same place a year earlier.
Individual rights do not depend on the time, date, or location of the alleged offense. Legal rights in particular cannot legitimately be infringed except when officers reasonably believe that an individual is about to commit an offense (see Willie v. The City of Vancouver, in which Provincial Court Judge, N. N. Phillips, states that “although the notorious problems of (Vancouver’s) Downtown Eastside may require the police to use extra-ordinary efforts to tackle the problems which exist, they must always do so within the scope of applicable law”).
In suggesting that “the right to be secure against unreasonable search or seizure” is subject to arbitrary suspicion, however, the Victoria Police Department is trying to take advantage of a dangerous collectivist tendency within Canadian jurisprudence. The police, like other special interest groups, feel that Constitutional rights are not inalienable, but rather, conditional upon external details and circumstances
They are hoping for another collectivist decision along the lines of R. v. Keegstra (the infamous Supreme Court of Canada ruling which used the Holocaust as an excuse to limit freedom of speech in Canada), or R. v. Kapp (a recent Supreme Court of Canada ruling affirming race-based rights for Indian fishermen, on the grounds that Indians have historically been discriminated against).
Granting police officers the ability to violate our Charter rights on the grounds of other people’s past actions would be yet another blow to freedom.
