Comment: Lack of Knowledge is Bad, Imperfect Knowledge may be Worse

Knowledge can be antithetical. As Francis Bacon Sr onced noted, knowledge is power. Yet, a little knowledge is a dangerous thing; imperfect "knowledge" can be disasterous.
There can be no doubt that a lack of knowledge about one's fundamental legal rights is problematic; educating and providing such knowledge is a laudible pursuit and should be applauded. This pursuit, however, is one frought with danger as providing imperfect or incomplete knowledge can be dangerous.
It is with this in mind that I read with great interest a new column in the Ottawa Citizen: "Law, justice, lack of knowledge a bad mixture" by Michael Edelson.  In his introductory column Mr Edelson, a prominent local defence lawyer, explains that the column (which will be authored by him and members of his firm) is intended, at least in part, at educating people "on their rights and obligations...under the law".  This is a laudable goal.  Yet, one must wonder, perhaps be concerned, whether this can so easily be achieved in this context; the law is dynamic and its application is dependant on an infinite set of possible factual circumstances.  More importantly, however, often lawyers and judges do not agree on what the law actually is on any given point. 
With this in mind, I waited with great interest for the first installment of this column.   
 
The first issue of this new column came out on Friday: "Right to Know: Meeting the police: An informed citizen won't be intimidated" by Solomon Friedman.  These concerns about the potential pitfalls of purporting to educate the public on the law are borne out in this first article.
In this first column Mr Friedman discusses the "casual" interaction with the police which he suggests is a "regular feature of our lives". Regular, perhaps, is a bit of an overstatement but this type of interaction indeed is one that people should understand and be informed about.  Unfortunately, with respect, I am not sure that is what Mr Friedman has achieved.  Two examples will illustrate this point. 
 
First, in discussing "investigative detention" Mr Friedman advises readers that "while the police may be able to perform a 'pat-down' for weapons, an investigative detention does not give the police the right to search you or your belongings" [emphasis added].  There are, in my view, some problems or ambiguities with this statement of the law. 
 
First, a "pat-down" will be permitted where officers have "reasonable grounds to believe that his or her safety or that of others is at risk": see R v Mann, 2004 SCC 52 at para 45. 
 
Second, a "pat-down" is a search. The suggestion that the police cannot "search you" seems to imply that the "pat-down" is not a search.  It is.  The purpose of it, where it is permitted, is to determine if their are weapons.  If the police feel what they believe is a weapon a more intrusive search will be permitted.   
 
Third, and most importantly, the suggestion that the police are not permitted to "search you or your belongings" seems to be in error.  In R v Plummer, 2011 ONCA 350, for example, the Ontario Court of Appeal commented on the search of Plummer, while under investigative detention, and a bag in the car in which he was seated.  In finding that both were permissible the court noted the following:
there is nothing in Mann confining a search incidental to an investigative detention to only the person detained... 
If, as the appellant concedes, a pat-down search for safety reasons is permissible, why should a broader search (for example of a bag in a car) not be available if the result of the pat-down search (for example, discovery of a bulletproof vest) continues to present a reasonable safety concern? In my view, Mann answers this question at the level of principle. Mann circumscribes police conduct by reference to a valid protective purpose, not by whether the search is of the person, or of a particular place or object in the vicinity [paras 53 and 58]; [emphasis added].
A similar outcome was reached in R v Peters, 2007 ABCA 181 where the Alberta Court of Appeal found that the search of the accused's backpack by an officer was a justifiable search incident to investigative detention. 
Mr Friedman's advice to the reader of his column that the police are not permitted to search "you or your belongings" may lead some to resist such efforts by the police.  Based on Plummer and Peters, such resistance would be ill-advised and potentially criminal.
 
Second, the suggestion that "the longer the detention, the more likely it is that you are constitutionally entitled to consult a lawyer and seek legal advice" is ambiguous and not entirely accurate.  In R v Suberu, 2009 SCC 33 the Supreme Court reviewed the right to counsel (section 10(b) of the Charter) and its application in the context of investigative detention.  The majority offered the following:
Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention [para 42]; [emphasis added].
The length of the detention is not determinative.  According to Suberu, if there is an investigative detention then officers are obliged, subject to safety concerns, to immediately inform and implement rights to counsel.
Educating the public about their fundamental legal rights is a laudable pursuit.  Perahps, however, this pursuit must be undertaken with caution and a warning: the law is not static, it is fact specific and sometimes, it is not settled. 
Knowledge can be power so long as it is fully informed knowledge.
 
DG Mack
In Tags