What are your rights around street checks? Law prof has some answers
N.S. justice minister has not called for a ban on the practice
In the wake of a report that found that black people in Halifax are six times more likely to be the subject of a street check, Nova Scotia's justice minister has stopped short of banning the practice and has instead directed the province's police departments to cease using quotas for street checks
Many are saying that doesn't go far enough, including NDP MLA Claudia Chender, who called for, at minimum, a temporary moratorium.
"Basically what the minister is saying is the police shouldn't be doing something that's totally unconscionable and illegal, so that's good I guess. I mean they shouldn't be. But I think it doesn't actually address any of the fundamental issues in the report."
Either way, at least for the time being, police will be allowed to continue street checks.
Wayne MacKay, professor emeritus at Dalhousie's Schulich School of Law, spoke with the CBC's Information Morning about people's rights when they're street-checked. This conversation has been edited for length and clarity.
The police definition of street checks includes making observations or surveilling from afar, as we've heard, but people are mostly concerned about being stopped by police. Are police legally allowed to randomly stop you?
It's a trickier question than you'd think. … In terms of a completely random stop, the general answer is no, they're not allowed, unless it's a traffic stop. If it's a car or a bicycle they can stop you, and for example, in the car you have to show your licence and your insurance and so on.
They can do that. But, if it's not that situation, generally they cannot randomly stop you, not so much because there's a rule against it, as the fact that the police can only do what the law allows them to do, and the common law and the Police Act don't specifically give them that authority.
What are your rights if police stop you for a street check?
You have the right to ask why they're stopping you. 'Why are you doing this? Do you have some suspicion? Are you planning to arrest me?' Something like that.
Those rights have to be exercised very carefully because if you do it in any kind of belligerent way, then it may get interpreted it is resisting or provoking. … It might be perceived that way. And that's really at the heart of a lot of this. Police have a lot of discretion and a lot of interpretation and they have to in the job that they do. But, therefore, you have to be really careful in exactly how you do these things.
The report mentions the case where police asked someone to open the trunk of his car so they could clear him of being a suspect in a robbery. What would you recommend people do in that instance?
The safe and appropriate thing, I think, to do in that instance is to not do that. And people [may ask], 'Why? I've got nothing to hide. They're gonna think I am hiding something.' Maybe. But you're taking a risk because if you consent to that search, which often does come after a traffic stop or street check, then they may find something that you didn't put there but somebody else put there, all those kind of things.
So you're not obligated to do [open your trunk]. The legal position is that [the police] are not to read anything negative into that. So you can politely say, 'No, I don't want to do that.'
If you think that police are violating your rights what are your options?
Well, if you think they're violating your rights there's a number of options. If it's a human rights issue, to go to the Human Rights Commission. The Police Commission has a complaint process, so you can file a complaint with the police complaint process. And, thirdly, you can go to court, which is expensive, but you can argue for violation of Charter rights or abuse of police authority in court as well.
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