BCCLA Challenges Victoria Police Department’s Search and Seizure Policy

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.

A Day in the Life of the BC Human Rights Tribunal

A tiny courtroom in the bowls of Vancouver’s Robson Square Courthouse played host to day-two of an ominous “human rights” case today, as three Muslim law students (“the sock puppets”) continued their effort to strong arm Macleans Magazine into changing its editorial perspectives.

Having followed the Macleans case for the past several months, I thought it was time to witness the proceedings of these frightening Gestapo-like pseudo-courts first hand. The case is being heard by a panel of three judges (but not real judges; just politically correct busybodies who happen to be judgmental), appointed by the BC Human Rights Tribunal.

The case (nominally Mohamed Elmasry v. Rogers Publishing Ltd.) has already been dismissed (sort of) by the Ontario Human Rights Commission, due to lack of jurisdiction, and is awaiting a hearing date at the federal Human Rights Tribunal. As you can probably guess, rules against double (or in this case triple) jeopardy do not apply to our friendly “human rights” enforcers.

The day began with about an hour of arguing over admissibility of evidence, as the Muslim students’ lawyer, Faisal Joseph, attempted to introduce one irrelevant report after another on the dangers of “Islamophobia.” Apparently, even the Tribunal “judges” were unwilling (or too lazy?) to read most of this redundant garbage, and ruled all but one of the reports inadmissible.

After the morning break the Canadian Islamic Congress’ first “sock puppet,” Khurrum Awan, began to testify, going over several Macleans articles by acclaimed author and columnist, Mark Steyn. Mr. Awan explained how these pieces of writing had “offended” him, and were “likely to expose” Muslims to “hatred or contempt,” which is the only standard of proof for a conviction under Section 7 of the BC Human Rights Code, the provincial equivalent to Section 13 of the federal legislation.

On cross examination, Macleans lawyer, Julian Porter Q.C., grilled Awan about his Spring 2007 meeting with the magazine’s editors, and efforts to settle the case before trial. Porter forced Awan to admit that he and the other complainants did not initially offer to negotiate a “mutually acceptable” compromise, as they had claimed after the meeting. Awan’s only defense was that Macleans’ editors had been curt with him and the other complainants (maybe they had a business to run…), and had not voluntarily offered to compromise (which, in a free society, they had no moral obligation to do).

Once Awan finished testifying, there was more arguing about the admissibility of evidence. Faisal Joseph announced that he would introduce content from three additional websites (not owned by Macleans), where writers and visitors had responded approvingly to Steyn’s November 2006 cover article, “The Future Belongs to Islam.” One of these websites was that of The Western Standard, whose founder, Ezra Levant, was “live blogging” at the tribunal today.

Ultimately, the panel accepted all of the additional exhibits unconditionally, despite arguments by Macleans’ lawyers that the BC Human Rights Tribunal had no jurisdiction over internet content originating in other provinces or countries. The Tribunal chair said that these arguments “were not convincing,” and that the division of powers between federal and provincial governments (constitutionally enshrined in Canada since 1867) had no bearing on their ability to consider evidence from outside the province.

Although this means plenty of publicity for Ezra (I certainly can’t blame him for welcoming the ruling), it sets an extremely disturbing precedent for future “Human Rights” cases.

The Tribunal has ruled that it can consider aggravating evidence from anywhere in the world, in order to better demonstrate that a respondent’s words or ideas have contributed to “contempt.” On that basis, even mild written criticism of an identifiable group (based on true facts) can easily lead to a s.7/s.13 conviction, provided that it can be loosely linked to a “contemptuous” comment by someone else, anywhere in the world. In other words, Human Rights Tribunals have the authority to punish you not only for your own ideas, but also for the ideas of others, in response to your ideas.

The last hour or so of the day was taken up by the testimony of Dr. Andrew Rippin, an “expert” witness called by Mr. Joseph. As a professor of Islamic Studies, Rippin was limited to “correcting misconceptions” about Islam, rather than specifically analyzing the meaning of Steyn’s articles. During his examination in chief, Rippin made the obligatory distinction between “moderate” and “extremist” Muslims, then claimed that nobody could truly understand the nuances of the Islamic religion without fluency in Arabic. The subtext, as far as I could see, was that those of us who don’t speak and read the Arabic language should accept whatever we’re told about Islam by Koranic scholars, the vast majority of whom happen to be Muslim.

On cross examination, Julian Porter pressed Rippin about extremest varieties of Islam, particularly Wahhabism, the sect which dominates in Saudi Arabia. Specifically, Porter noted that Wahhabi Muslims are required to believe in strict application of Sharia law, which punishes many petty crimes with torture and physical disfigurement. He then produced a book that Rippin himself had written several years ago, which acknowledged that the spread of Wahhabi Islam was a threat to world peace and could, regrettably, lead to violence.

Although not as strongly worded as Steyn’s infamous Macleans article, Rippin’s own book is intellectually honest enough to raise many of the same concerns. Some people who have read it may well have (justifiably) felt flashes of anger, or even “hatred or contempt” towards Wahhabi Muslims. And yet Rippin’s writings have never been subject to a “human rights” complaint. Why? Because he toes the line of political correctness, and is happily accepted by Canada’s academic and political establishments.

I walked away from today’s hearing with a more profound realization than ever before of how biased and arbitrary Human Rights Tribunals really are. Sections dealing with “hate messages” exist solely to bend all thought towards a politically correct mainstream. Today, that mainstream is personified by relatively bland and inoffensive academics like Rippin, and seems more or less harmless to most Canadians. In 20 or 30 years, it’s anyone’s guess what the mainstream might be, and if even a fraction of Mark Steyn’s perfectly plausible predictions come true, it won’t be pretty.

Ultimately, it is an individual’s absolute right to exist outside the mainstream, peacefully holding and expressing whatever opinions they see fit. Perhaps just as crucially, mainstream society should be created and molded by individuals, not the other way round. These are the values that all of our laws should reflect.

Click here for Andrew Coyne’s live blog, which will provide constant updates on the Macleans trial in the days to come.

Bureaucratic Agencies Reach ‘Compromise’ on Victoria Tobacco Signs

A ludicrous bureaucratic logjam involving Victoria’s Old Morris Tobacconist shop was broken this week in the form of an awkward compromise between City of Victoria heritage planners and the Vancouver Island Health Authority.

In recent weeks, Old Morris Tobacconist owner, Rick Arora, found himself between a rock and a hard place as health officials threatened to fine him up to $5,000 for his store’s outdoor signs, which allegedly “advertise” tobacco products in a public place. The problem was that removal of these signs, which have been in place since 1910, would have violated municipal rules against “altering a heritage building” (punishable with fines of up to $1-million).

After the story received media attention earlier this week, the relevant government agencies were forced to have a meeting and reach a solution. Mr. Arora gets to keep his “Tobacconist” sign over the main entrance to his store, but must cover up another sign promoting “house blends” and “Havana cigars.”

This sounds like a reasonable, relatively inoffensive compromise solution. But it’s not.

The fundamental problem with this arrangement is that two bureaucratic agencies got to “compromise” on a solution, while a private business owner who actually owns the store was given no say whatsoever.

Government bodies created the problem in the first place, and government bodies spent taxpayers’ money to “solve” it, while ignoring the only individual with legitimacy to make a decision. Such is the nature of the modern-day social democratic state.

In theory, I fully support covenants protecting heritage buildings, provided that property owners give their voluntary consent that they and all future owners will cooperate with given restrictions (potentially lowering the property value). In the case of a truly exceptional building or landmark, members of the public should raise money to incentivize owners to sign such a contract.

In the case of our provincial Tobacco Control Act, however, the government is violating natural property rights plain and simple. Private businesses should be able to set their own regulations with regard to both tobacco use (indoors or outdoors) and tobacco signs.

Do legislators really think that banning a sing promoting “house blends” and “Havana cigars” will prevent teenagers from smoking? Anyone who has actually been a teenager knows that the forbidden fruit is the most tantalizing. Marijuana, and signs promoting it, are totally illegal throughout Canada, and yet, this drug “herb, bearing seed” (Genesis 1:29) is more popular than tobacco among young people today.

It is parents and other concerned citizens, not the state, who are responsible for ensuring that children understand the dangers of addictive substances. Adults, meanwhile, should be completely aware of those dangers, and are free to make their own decisions on the matter.

Private businesses, as well, should be able to set their own regulations based on the will of their customers. If the majority of the public is averse to smoking (which seems to be the case), then public smoking will gradually be phased out in accordance with free market principles.

Government regulation of tobacco usage and signage has absolutely no place in a free and democratic society.

Trapster: Avoid Speeding Tickets with Your Cell Phone

I don’t often plug products on this site, but the other day I came across an innovative mobile software application that combines social networking with citizen cooperation, and actually has the potential to be quite useful.

I speak of course of Trapster, a handy new service for smartphones (think BlackBerry, iPhone, Windows Mobile, etc.) that allows drivers to share information about police speed traps in real time. Once installed, it’s easy to use – just dial #1 on your keypad whenever you see police radar by the side of the road – and will cause your phone to beep as you approach hiding cops, thus warning you to slow down and avoid a ticket.

And with the current legal state of affairs, speeding tickets aren’t the only thing to worry about. All of Canada and every U.S. state except New Hampshire has seatbelt laws in effect, forcing citizens to buckle up or pay up (and in some cases, go to jail). Ontario, meanwhile, is on the verge of passing legislation to restrict smoking in vehicles, and numerous states and provinces have implemented bans on cell phone use when behind the wheel.

Trapster shouldn’t be seen as an encouragement to speed, drive recklessly, or be stupid behind the wheel (don’t abandon your common sense), but it will provide you with a nice little safety reminder from time to time, minus the ~$150 fine. Most importantly, Trapster recognizes the role of your common sense in determining what safety precautions to take, rather than leaving all the decisions to the state.

Of course, the very idea that individuals might have enough common sense to make their own decisions can be quite terrifying for government. Therefore, I wouldn’t be surprised if criminalizing Trapster is next on their agenda.

In the U.S., this service is probably quite safe from a legal standpoint, given that the flashing of headlights to warn of a police speed trap has been ruled protected speech under the First Amendment. But in Canada, where free speech is effectively non-existent and seven out of ten provinces have criminalized radar detectors, I wouldn’t be surprised to see services like Trapster banned from use.

Such an edict would be very difficult to enforce, of course… But nevertheless, download it while you can.

Victoria Police Officers Guilty of “Cruel and Unusual Punishment,” Says Jury

Willow Kinloch, a teenager arrested and hogtied by Victoria City police in May 2005, has been awarded $60,000 in damages for false imprisonment and cruel and unusual punishment by a BC Supreme Court jury.

Although I cringe on behalf of local taxpayers, I must ultimately lend my support to Ms. Kinloch, given the outrageous facts of this case. Having observed the proceedings of this trial at the Victoria Law Courts over the past 10 days, I am of the opinion that the police constables involved in this case made all the wrong choices at every juncture.

Ms. Kinloch was arrested at around midnight on May 6, 2005, and freely admits that she was drunk at the time. She apparently provided her address to the arresting officers who could have made the compassionate choice and taken her home (just three blocks away). Instead, they booked her into police cells for about four hours, after which she was described as “calm, cooperative, and sober.”

At this point, police officers drove Kinloch to her apartment, but arrived at the wrong entrance to the building and refused to let her out of their vehicle, then drove back to the police station without giving her access to a police cell phone (which they carried as a matter of necessity, despite our city’s $17.5 million dollar investment in the ineffective CREST police radio system.)

Police constables then re-booked Ms. Kinloch into custody claiming that she was a “child in need.” After expressing her frustration with this, Kinloch was thrown against a cell wall, taken to the ground by two officers each more than twice her size, then handcuffed, bound at the ankles, and tied to the cell door. All of the officers involved finished their shifts a little over half an hour later, then headed for home without so much as a thought for the “child in need” they had tied and abandoned a few minutes before.

One constable later testified that Kinloch was left in a “safe” and “comfortable” environment. On cross-examination he admitted that she remained tied up on a hard cement floor for about four hours, and that this “wasn’t like a sofa chair.”

Police defended their actions claiming that if they hadn’t forcefully restrained the 5-foot-tall, 100 lbs. teenager, they might later have needed shields, riot gear, and pepper spray to control her (within a 7′ by 6′ padded cell.) As a citizen, I would have to say that this doesn’t inspire much confidence in the abilities of our local police officers.

The success of Kinloch’s civil suit was primarily based on s. 12 of the Charter of Rights and Freedoms, which prohibits any form of “cruel and unusual punishment.” It is clear and apparent from the testimony and video evidence in this case that police did what they did more out of a desire to punish an individual that they found annoying than to ensure the safety of anyone. The jury ruled that this punishment was “cruel and unusual,” in that it was “so excessive as to outrage standards of decency.”

On the evening of May 6, 2005, Ms. Kinloch was drunk on alcohol, but the police officers who restrained her were drunk on something far worse — power. This has all-too-often been the case in the past few years, as is demonstrated by many recent events. The monopoly on the legitimate use of force in a society, like any other monopoly, can easily lead to abuse and recklessness. The only solution to this is meaningful personal responsibility.

$60,000 in damages, paid for by the taxpayers, might induce some public pressure on police to be more reasonable, responsible, and honest, but it will also remind those who are mistreated (or think they’ve been mistreated) by police that the courts provide a possible redress. If police officers continue using unreasonable force and abusing their power, citizens should demand changes to the Police Act and other similar pieces of legislation, requiring that officers themselves are more frequently held financially accountable for their actions.

The odd lawsuit involving an innocent mistake might be part of the legitimate cost of policing, but the consistent malicious misconduct of police officers that we’ve been seeing in recent years is not. We the people should not have to pay for the obvious mistakes of those whose salaries we already provide.

We give these people power so that they may keep us safe. But when they abuse this power, we should make them pay. Before they act, we should make them think.