Law Times

Law Times • sepTember 28, 2015 Page 7 www.lawtimesnews.com COMMENT A simple first step to address illegitimate carding BY NICK KASCHUK For Law Times T he legitimacy of street checks relies upon the idea that police officers are not tar- geting specific groups of individuals based upon their race, place of origin, age, colour, ethnic origin or other factors and that people are pro- viding the information to them on a voluntary basis. That said, in many cases people may not be aware of the precise limits of a police officer's authority and may, therefore, comply with a request not because they are willing to do so but because they believe they have no other choice. More importantly, in many of these situations, such a belief may be a reasonable one with the Supreme Court of Canada calling such cases in- stances of psychological detention. With more than one million documented cases of carding in Toronto, it seems reasonable to expect that at least some portion of those subject to it had provid- ed their information to the police with the reasonably held belief that they had no other choice but to comply. As of now, it is open for such people to make an ap- plication to the courts to seek a remedy under s. 24(1) of the Charter of Rights and Freedoms. If granted, the courts could, theoretically and among other things, order the police to expunge the impugned informa- tion from their records. Waiting for a f lood of such applications seems to be the least desirable solution. As such, Toronto po- lice might instead want to consider the alternative yet simple solution of voluntarily removing whatever information they have gathered from a carding stop upon request. By doing so, the courts would save the time and expense of litigating every single potential case of psychological detention and, more important- ly, the Toronto Police Service would send the message that it has no interest in profiting from any potential Charter violations. In addition, by making removal of information available upon request, the police would also have the opportunity to further interact with the public. That would, in turn, offer the public the opportunity to de- termine whether or not there was anything a particular officer said or did that made the people they were speak- ing with feel as though they had no other choice but to comply. The police could then use that information to build upon their knowledge and training practices and further ensure that all officers were aware of what they might be saying or doing that could jeopardize their re- lationships with the public. Furthermore, by interacting with the people they had originally detained, the police would also have the chance to provide them with materials outlining what they could say or do in the event they ever found themselves in a similar predicament. That information could again help prevent future Charter violations from occurring and could also go a long way in restoring whatever trust police might have lost as a result of the initial event. The only alternative seems to be for Toronto po- lice to refuse to remove the information they have collected until an authority orders them to do so. How- ever, by refusing to remove such information, the po- lice risk their reputation falling into further disrepute. Simply put, morality demands that people return what- ever they have mistakenly received to the rightful owner once they have discovered that it was never actually in- tended for them. In the case of carding, doing so would confirm that police acted in good faith throughout the process of receiving the information. As many of us might imagine, community policing is likely a hard enough job as it is. That said, we shouldn't accord our full sympathy to community policing as it makes no allowances for misunderstandings or human error and instead chooses to stubbornly refuse to rectify its wrongs. Let's hope that in the coming days, Toronto police will adopt a policy of voluntary removal for those who inform them that they never intended to provide their information. At the very least, it would demonstrate the police force's commitment to a fair and just process. A simple solution is present. Both the reputation of the Toronto police and the administration of justice are at stake. LT uNick Kaschuk, a criminal lawyer called to the bar in 2003, is the author of several articles and a book and is a sessional lecturer at the University of Toronto. u SPEAKER'S CORNER A tale of two cities as SCC validates expropriation for private use T o a collective yawn in the popu- lar and legal press, the Supreme Court of Canada ruled recently on perhaps one of the most dra- matic developments in Canadian real property law. Indeed, the real estate development world has barely noticed the bombshell decision in Vincorp Financial Ltd. v. Oxford (County) even though its players have both the most to gain and, theoretically, lose from the new paradigm shift ushered in by the Supreme Court of Canada. The facts in this groundbreaking case involve the Toyota plant in Woodstock, Ont., that has actually seen much popu- lar press of late for other developments. Toyota makes a lot of cars. It's a world- class employer and it wanted to build more cars in Canada at a proposed plant in Woodstock. But there was a small problem. A local shopping centre owner owned part of the land needed for the new plant and wasn't willing to sell it to Toyota at a price that would make the operation viable for the automaker. Rather than see this economic manna fall from the sky into the hands of another jurisdiction with suitable land to spare, the County of Oxford expropri- ated the property from the local shopping centre owner and then promptly turned around and resold it to Toyota at the expro- priation price. The price was a substantial discount to what Toyota would have had to pay in the open market to the owner. The owner of the shopping centre and its lender complained that expropriating land for public use, such as for a hospital, transit station, roadway or army barracks, was one thing but that what the County of Oxford was proposing to do was to take one private owner's land for the benefit of someone else. Nobody, of course, could argue against the fact that having a Toyota plant in the community had an enormous overall economic benefit to the entire region and the province, but the point remained that the county undertook this expropriation specifically to forcibly transfer the land from one private owner to another. As people in dispute over real estate are wont to do, ev- erybody went off to court. The shopping centre owner and lender lost at trial with the judge concluding that the county had effected a proper expropriation. While it had in- deed forcibly transferred the land from one private owner to another, it was nonethe- less a legal expropriation since "a compel- ling valid purpose (promotion of econom- ic development) drove Oxford's decision to expropriate mall lands and sell this land to Toyota for the expropriation price. The fact that the mall lands were transferred to Toyota for the expropriation price does not change the validity of the expropriation." The shopping centre owner and its lender appealed and lost again at the Court of Appeal. It adopted the trial judge's rea- soning essentially in its entirety. The final blow came courtesy of the Supreme Court of Canada when it recent- ly refused to hear the appeal. Many fol- lowers of the case, including me, expected the Supreme Court of Canada to at least hear the appeal since the whole idea of using expropriation to force lands from one private owner into the hands of an- other, even if there might be undisputed ancillary economic benefits to the com- munity, seemed, at least in theory, to raise the spectre of moral hazard and potential abuse by expropriating authorities and, furthermore, such concerns would be of national public interest. The Supreme Court of Canada disagreed, refusing leave without detailed reasons. Regular readers of this column should be experiencing an odd sense of judicial déjà vu. A few years before the Woodstock expropriation, the almost identical drama played out in the United States in a town called New London, Conn. Pfizer, the maker of those wonderful blue pills and other pharmaceuti- cal products, was proposing to build a research centre there, but others, including a woman named Susette Kelo, owned some of the land it needed and none of them was willing to sell their homes at any price. Like the County of Oxford after it, rather than see this economic manna fall from the sky into another jurisdiction with suitable land to spare, the City of New London ex- ercised its eminent domain rights and took title to the properties and then promptly transferred them all to a developer as part of a much bigger land assembly for Pfizer's research facility. In Kelo v. City of New London, the U.S. Supreme Court did actually hear the case and upheld the exercise of eminent do- main but only by the thinnest of margins. In a 5-4 decision, the court upheld the no- tion that government could in fact use its expropriation powers to forcibly transfer land from one private owner to another as long as there was a compelling argument the transfer would further economic de- velopment in the community. A consistent theme in the arguments raised by the shopping centre owner and lender in Woodstock and Kelo and her neighbours in New London was that giv- ing municipal governments (and other expropriating governmental bodies) the power to force land from one private owner to another through expropriation by merely projecting consequential great- er economic development in the com- munity runs the risk of abuse of power by local political interests. Indeed, even the majority reasons in Kelo, which up- held the expropriations, did so only after multiple warnings and qualifications that all essentially admonished expropriating authorities not to abuse the process. Canadian municipalities, in particu- lar, should be reading through the history of the Woodstock and New London ex- propriations with some sense of cautious optimism. Because the Supreme Court of Canada chose not to hear the appeal, those extensive admonitions from the top court warning against abuse of power don't exist in Canadian law as they do in U.S. law, but governments also don't face nearly as many express restrictions on the use of their expropriation powers as their counterparts south of the border (includ- ing a number of state-passed legislative amendments following Kelo that ex- pressly ban expropriations for the benefit of a private owner altogether). Canadian municipalities, in contrast, now have a seemingly freer hand to use expropria- tion techniques to facilitate economic de- velopment in their own communities. Ironically, these attempts by municipal- ities on both sides of the border to further local economic development in their home jurisdictions have turned out quite differ- ently. While both municipalities succeed- ed in their expropriations, New London's project never materialized. The developer never got the necessary financing in place, Pfizer eventually merged with Wyeth, and the combined company abandoned the idea of a new research facility in New Lon- don altogether. After all of that drama, the Kelo home was expropriated and then left derelict. It has been an abandoned vacant lot for years and, apparently, remains so to this day. In contrast, Toyota finished the land assem- bly in Woodstock, the factory opened in 2008, and, together with both the federal and provincial governments, Toyota just announced a new expansion there togeth- er with plans for new investment in the plant. It's a tale of two cities indeed. LT uJeffrey Lem is editor-in-chief of Real Property Reports and director of titles for the province of Ontario. The opinions ex- pressed in this article are personal to him and not attributable or referable to the On- tario government. The Dirt Je rey Lem Je rey Lem

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