Know Your Rights

April 29, 2010

Attorney Davin Charney says there is a "systemic problem of illegal detentions, arrests and searches of people who refuse to identify themselves to police."

Waterloo Regional Police are once again facing a civil suit for wrongdoing. On August 2, 2009 two members of the Waterloo Regional Police arrested Davin Charney and Mark Corbiere for failing to identify themselves as they walked out of the Kitchener Farmers Market. The two have filed a claim in the Kitchener Small Claims Court.

A trial will take place starting at 10am this Thursday, April 29, 2010.

Please find attached an open letter to the Matthew Torigian, Chief of Police, and Tom Galloway, Chair of the Police Services Board. The letter address the systemic problem of illegal detentions, arrests and searches of people who refuse to identify themselves to police.

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April 29, 2010

Chairperson Tom Galloway
Waterloo Region Police Services Board
200 Maplegrove Road
Cambridge ON N2H 6S8

AND

Chief Matthew Torigian
Waterloo regional Police Service
200 Maplegrove Road
Cambridge ON N2H 6S8

Dear Mr. Galloway and Mr. Torigian:

More cases continue to come to my attention where officers with the Waterloo Regional Police Service (WRPS) are illegally stopping, arresting and searching people who refuse to provide identification.

The following cases highlight the problem:

On February 18, 2010, a lawyer and college of mine, Jeffery Garland, was unlawfully detain and then arrested, handcuffed and searched by WRPS officers after he refused to provide identification. At the time, he was shopping in downtown Kitchener while walking home from his law office. He will file a formal complaint today.

On April 13, 2009, Mathew Probert was unlawfully detained and then arrested after he refused to identify himself. This unfortunate incident led to a violent confrontation whereby Mr. Probert suffered serious head injuries and he was also criminally charged. All charges were withdrawn by the Kitchener Crown Attorney’s Office. A report produced by the WRPS complaints department found that an officer’s actions were unlawful and, “…should have respected Probert`s objections and simply allowed him to continue on his way unimpeded…” Mr. Probert has filed a civil claim in Small Claims Court.

On August 2, 2009 Mark Corbiere and I were arrested when we refused to show identification to two officers. It is absurd that the officers have since tried to justify their actions by saying we were suspected in a break and enter. I was handcuffed and held in a police cruiser while an officer searched though my wallet for identification. We were both released without charge. Mr. Corbiere and I have filed a civil claim against the WRPSB; our trial begins today.

These above examples suggest that WRPS officers mistakenly believe that they have lawful authority to arrest or detain people who refuse to identify themselves. The law is clear on this point; there is no general police power to arrest or detain a person who fails to provide identification.

The Supreme Court of Canada in R v Storrey (1990) makes it clear that police cannot arrest unless they have reasonable grounds to believe that a person has committed an offence. Except in limited circumstances (e.g. while driving), it is not an offense to refuse to identify oneself.

Short of an arrest, police do have the power to detain a person for investigative purposes. However, the Supreme Court in R v Mann (2004) and R v Clayton (2007) has limited police search powers during these detentions. The detentions must be “brief”, and search powers are limited to a “frisk”. Police are not allowed to search people for identification in the course of an investigative detention. Handcuffs can only be applied if there is resistance to a lawful detention or other significant officer safety issues.

The public expects that police officers not only enforce the law, but that they obey the law themselves. Officers should be reminded that it is the right of every person to refuse to identify themselves to police. We do not live in apartheid South Africa. There is no general police power to arrest for failing to identify oneself. Nor is there any power to search a person for identification when they are being held under an investigative detention.

It is impossible to say how frequently police in the Waterloo Region are unlawfully detaining, arresting and searching people who refuse to provide identification. If it is happening to lawyers, I can only imagine that this problem has a far greater impact on marginalized communities particularly youth and street involved people. There must not be a culture of indifference in the police force with respect to basic rights of those they “serve and protect”. I respectfully request that the Police Services Board and the Chief of Police investigate what appears to be a systemic problem.

Sincerely,

Davin Charney