BCCLA lodges police complaint after unlawful searches reported at fireworks

Author: Silvana Lovera

The BC Civil Liberties Association has received information that the Vancouver Police Department implemented a policy of unlawful mandatory searches during the Celebration of Light fireworks. The BCCLA has accordingly filed a policy complaint under the Police Act against the VPD.

In January 2009, the Commission for Public Complaints Against the RCMP released a report in relation to a similar complaint arising from events in Victoria, BC, analysing the law in BC regarding mandatory searches for alcohol. The report ultimately found mandatory searches to be unlawful.  The report went so far as to say that search checkpoints, even if based on apparent consent, are “potentially irreconcilable with ensuring that the citizen is aware of the right not to be searched.” As a result of the CPC report, RCMP Commissioner Elliott has expressly directed RCMP offers not to participate in mandatory search programs.

A witness observed pedestrians in English Bay being randomly approached by VPD officers who asked to search their personal belongings. The witness approached the VPD officers and inquired about VPD authority to search for and seize alcohol.  The VPD officers responded by falsely claiming that this practice is consistent with the Liquor Control Act.

Simply put, suspicion is not reasonable grounds for a search. The CPC report makes that clear:

It is not enough [grounds for a law enforcement officer to justify a search] to believe that some, or many, or most, people in a particular group are in possession of liquor for an unlawful purpose.

The CPC report clarifies the law, that mandatory searches for alcohol are unlawful.  It appears that the report has been ignored by the VPD, who continues to direct its officers to conduct mandatory searches for alcohol at large-scale events.  The Celebration of Light is one among many of Vancouver’s large public events, which include the Pride Parade, and the upcoming Olympic and Paralympic Games.  The BCCLA is alarmed by the police resistance to end mandatory searches.  These actions will not only affect residents of Vancouver, but the reputation of Vancouver as a tourist-friendly city in a country which respects the rights and freedoms of its citizens and its guests.

Check out the report by the Commission for Public Complaints Against the RCMP.
Check out the letter of complaint.

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Jun

29

2009

Victoria police and BC Transit invite lawsuits over mandatory searches

Author: Jesse Lobdell

BC Transit has announced a policy not to allow alcohol on Victoria’s transit vehicles on Canada Day, stating that service will be “monitored” and customers will be asked to demonstrate compliance.  Those who refuse to be searched will apparently not be allowed to board transit vehicles.  The news release included a comment from the Victoria police chief applauding this policy.

The policy is simply unlawful, and the BC Civil Liberties Association is advising victims of this policy to consult legal counsel about bringing a class action or other civil suit should they be subjected to an illegal search.  People who feel compelled to submit to a search, even if they consent to such a search in order to board a bus, may argue that they have been subjected to unlawful detention and search.  As a matter of law, the police must catalogue all seized property so that it can be reclaimed or individuals can be compensated for lost or destroyed legal property.

It’s not just the BCCLA calling the searches unlawful.

In 2008, the BCCLA filed a complaint against the Victoria Police Department and four other police departments in the capital region for implementing a program of mandatory searches for alcohol on Canada Day.  The Commission for Public Complaints Against the RCMP agreed to do a public interest investigation based on the complaint, ultimately finding that the practice was unlawful on many levels.  The CPC report went so far as to say that even search checkpoints based on consent are “potentially irreconcilable with ensuring that the citizen is aware of the right not to be searched.”

The CPC report examined the British Columbia Transit Act and found that

“The transit employee’s power to deny the use of a transit vehicle is contingent upon the person’s disobedience of a sign or failure to comply with rules.  The disobedience or failure must be established before the employee may take such action.  The regulation does not authorize the transit employee to search the passenger or would-be passenger in order to determine whether the person is disobeying or not complying.  It is not the source of a power to search passengers’ bags.”

RCMP Commissioner William Elliott agreed with the CPC report and stated that

“the British Columbia Transit Act and Transit Conduct and Safety Regulation do not authorize searches of passengers’ bags at the bus stops.”

As a result of the CPC report, Commissioner Elliott has expressly directed RCMP members not to participate in mandatory search programs.  The RCMP will police public drinking and intoxication with police presence, a method that works without any intrusion into civil liberties.  The Victoria Police Department seems determined to waste time and energy on unlawful searches.  And now they seem determined to waste the City of Victoria’s budget defending lawsuits.  Clearly the police need to find another way.

It shows real scorn for the law to implement a policy known to be unlawful.

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Jun

17

2009

VPD releases camera seizure policy after BCCLA complaint

Author: Jesse Lobdell

A little more than two months after Province photographer Jason Payne’s camera was seized by the police, the VPD have issued written policy to prevent such an incident from happening again.  The VPD should be applauded for their quick and decisive action in remedying this policy gap.  The BCCLA intends to withdraw its complaint regarding the incident.

Const. Lindsay Houghton says the policy “has always been there, but now we’re putting it in writing and making it official in our regulations manual”.  The newly written policy states that officers must have consent or a warrant to take a member of the public’s property, unless they reasonably (based on articulable facts) believe evidence will be lost or destroyed if they don’t seize the property, or the person is under arrest.

It’s unfortunate that Houghton states that obtaining a warrant could stall an investigation.  Due process is not an inconvenience for police officers, it is their duty.  As well, officers must also explain the details of when property will be returned in order to obtain proper consent.  RCMP officers originally told Paul Pritchard they would keep his video footage for a day or two, but once in their hands, the RCMP stated that they would keep the footage for 1.5 to 2.5 years.  Mr. Pritchard was forced to threaten to sue the RCMP to regain his property.  The BCCLA made a police complaint stating this was active suppression.

The Province reported the policy change today and check here and here for further background on the story.

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Jun

8

2009

VPD: it is okay to drink on the beach

Author: Jesse Lobdell

The Vancouver Police Department have a little-known, informal policy: it’s okay to drink on the beach if they say so.  The VPD says they’re not targeting those who sneak a sip of wine on the beach “discretely”, but rather are targeting what they call “rowdies”.

It’s a decent policy given the constraints of current municipal and provincial law, although the BCCLA might suggest that the issue is not the alcohol, but the conduct of the individuals involved which needs to be policed and that our laws - not the arbitrary decision of a police officer - should set out that distinction so that people may guide their conduct accordingly.

The RCMP may or may not take the same approach, but they are certainly cognizant that a technical enforcement of the law is not always the best policy.

Part 18.1, section 5.1.2 of the RCMP Operations Manual states the following:

Police have been criticized for being overzealous in detaining intoxicated persons, particularly in cases involving the angry reaction of a person under the influence of alcohol to a technical enforcement by police, where no apparent harm or wrong is being done.

Historically, it has been reported to the BC Civil Liberties Association that police have been seizing and dumping out alcohol on beaches, in one case leaving a large pile of beer cans on the beach before departing.  One wonders about the littering aspect, but possessing alcohol is not an offense, provided it is possessed for a legal purpose (like not drinking in public in an unlicensed venue like the beach).  If the police are going to seize alcohol, they are supposed to provide you with a receipt or ticket so that you may have the opportunity to challenge the seizure and retrieve your property.

The report by the Commission for Public Complaints Against the RCMP that clarified the legality of mandatory searches and the seizure of alcohol is essential beach reading.

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