NYPD “Stop and Frisk” Powers: A Canadian Perspective
Clearly it was not Mayor Bill de Blasio that pulled the trigger that killed two of New York City policemen, but many of New York’s Finest and their supporters are reacting as though the mayor has blood on his hands. When officers Wenjian Liu and Rafael Ramos were gunned down in cold blood on a Brooklyn street in mid December, apparantly as retibution for the police chokehold death of Eric Garner, thousands of New Yorkers saw De Blasio as the source of the problem. When he spoke at Ramos’ funeral, hundreds of NYPD officers thought it was fittting to turm their backs on him. Mayor de Blasio represents the “pushback” of mainstream America that sees the NYPD as being unfairly under attack as a racist police force. All of this on the heels of sensational recent news stories about American police killing unarmed black youth in situations where, arguably, less force could have been used.
What on Earth did this New York mayor do to earn the wrath of his police department? A police department that since 9/11 had attained nearly godlike staus as being able to restore law and order to the City and to reduce the once soaring crime rate? The answer actually came as a mild shock to this Canadian defence lawyer. It sems that for the past 12 years, New York police have been permitted to carry out some 4 million “stop and frisk” searches, largely of young black and Hispanic men. Mayor de Blasio’s offence was to campaign against this practice and to end it.
The Canadian Perspective of Investigative Detention
In Canada, the Charter prohibits “stop and frisk” searches. The leading case of R. v. Mann (2004) http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2167/index.do held that police in Canada may only detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that detention is reasonably necessary on an objective view of the circumstances. These circumstances include the extent to which the interference with individual liberty is necessary to the performance of the officer’s duty, to the liberty interfered with , and to the nature and extent of the interference. At minimum, detained individuals must be clarly advised of the reasons for their detention. These “investigative detentions” must be brief in length. They do not impose an obligation upon the detained person to answer police questions. Where a police officer has reasonable grounds to believe his safety(or the safety of others) may be at risk, the officer may engage in a protective pat down non intrusive) search of the individual.
All of this is not to say that Canadians are never subject to unlawful police detentions. What it says is that in order for police to detain some one, they cannot do it on a whim. They must be able to articulate why the officer believes the suspect is connected to a paricular crime that has occured. The detention must be brief; the detainee is not obligated to speak to police and any search must be limited to a “pat down” search that reasonably relates to officer safety or safety of another.