Friday, September 07, 2007

Search, Seizure and Reasonable Cause Up North: Reg. v. L.B.

There's been an interesting development in Canada recently that involves some of the same issues we deal with every day here in the context of investigatory stops and reasonable cause.

It involves some things at the heart of Canada's Charter of Rights and Freedoms, which you can read about here. In particular, Articles 7 through 14 are pertinent, and the case made it all the way to the Ontario Court of Appeal on September 5 of this year

The story goes back to 2002 when two Toronto policemen noticed two youths seated near the stairway leading to a high school. The officers observed that although the two were physically separated they were obviously communicating, and one was holding a black bag. The officers thought this a little strange and proceeded to investigate, although under Canadian law the youths were entitled to not speak to them or to walk away without hindrance.

L.B., the youth on the upper part of the stairway came down to talk to police and one officer noticed that he was not holding the black bag he'd been seen with. A short search found the bag concealed in some litter, and L.B. denied it was his.

Inside the bag was some of L.B.'s schoolwork and a loaded handgun-very illegal in Canada.

At trial, L.B. was able to invoke the exclusionary rule of section 24(2) of the Charter to have the fruits of the search suppressed and the case dismissed by the trial court by arguing that he'd been psychologically detained.

On discretionary appeal by the Crown, the Ontario Court of Appeals found that the trial court had erred in suppressing the evidence and dismissing the case. L.B.'s conduct was not that of someone who felt compelled to speak to police against his will, but that he'd sized up the situation and walked down the stairs and initiated a conversation with officers. When that tactic backfired he began to panic.

There was nothing to support the idea that L.B. had been psychologically detained, and the case was sent back for trial.

The Court opined that L.B.'s conduct showed disdain for the rights and freedoms in the Charter and that it struck at the core values the Charter is meant to protect. Canadians therefore would find it egregious if such conduct was allowed to pass without a trial on the merits.

Of course, as you might expect, Canada's answer to the A.C.L.U. is up in arms about this alleged diminution of the right of armed thugs to wander around school property. It appears that in cases where dangerous weapons are involved the courts at Canada may be moving away from the idea of automatic exclusion.

The takehome for those of us south of the line who have to deal with these issues is that policemen face the same set of issues every day whether they wear Old Glory or the Maple Leaf. It's an idea worthy of consideration, if only because the Charter's provisions and the law built up around our Bill of Rights are not so very different.


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