Pubdate: Wed, 27 Feb 2008
Source: Tribune, The (CN ON)
Copyright: 2008, Osprey Media Group Inc.
Contact:  http://www.wellandtribune.ca/webapp/sitepages/
Details: http://www.mapinc.org/media/2807
Author: Edward L. Greenspan
Note: Edward L. Greenspan is a Toronto criminal lawyer

POLICE DON'T HAVE FREE REIN TO SEARCH

Conviction For Drug Charge Should Be Overturned

In 2004, an Ontario police officer noticed a car  driving without a 
front licence plate, which is a  traffic offence.

But when he saw an Alberta plate on the rear of the  car, he realized 
this was permitted in Alberta, and so  it was not even a traffic 
offence in Ontario.

But he had already put on his flashing lights and so,  what the heck, 
he still stopped the car knowing he had  absolutely no legal reason to do so.

The officer questioned the driver, Bradley Harrison,  despite having 
no legal right to do so, and learned  that Harrison's licence had 
been suspended. The officer  then arrested him and searched the car. 
He found 35  kilograms of cocaine.

The trial judge found the police officer's actions were  a flagrant 
and brazen violation of Harrison's rights  under the Charter of 
Rights and Freedoms. The judge  found the stop was arbitrary, 
Harrison's detention  unlawful and the search not conducted in good faith.

He also found that the officer had lied under oath.  But, the judge 
admitted the cocaine into evidence  because he determined that to do 
otherwise would bring  the administration of justice into greater 
disrepute  than excluding it.

Harrison was convicted and sentenced to five years in prison.

The charter requires evidence to be excluded from trial  if allowing 
it in would bring the administration of  justice into disrepute. I 
cannot understand how the  repute of the administration of justice is 
not  seriously tarnished by blatantly illegal police  conduct.

Yet two judges of the Ontario Court of Appeal recently  upheld the 
trial judge's decision.

The third judge, Madame Justice Cronk dissented:

"While excluding the evidence could bring the  administration of 
justice into disrepute, on the record  in this case, the 
administration of justice would be  brought into greater disrepute by 
admitting it. To hold  otherwise on the facts and in the 
circumstances of this  case, would invite the disregard of charter 
rights by  the police, with an unspoken assurance of impunity."

Justice Cronk got it right.

The charter is in place to protect us against  unreasonable search and seizure.

Some people may prefer an accused go to jail regardless  of the fact 
that evidence was seized illegally.

I believe it is dangerous to let the police do whatever  they want in 
the hopes of striking gold.

In other words, a search is not to be made legal by  what it turns 
up. In law it is good or bad when it  starts and does not change 
character from its success.

A famous U.S. Supreme Court judge said: "[I]t is  monstrous that 
courts should aid or abet the  law-breaking police officer. It is 
abiding truth that  '[n]othing can destroy a government more quickly 
than  its failure to observe its own laws, or worse, its  disregard 
of the charter of its own existence.'"

Justice Cronk is not alone in her judicial concern  about chipping 
away at Canadian's charter rights and  protections.

Justice Ian Binnie of our Supreme Court stated the  following in 
2007: "A society that valued police  efficiency and effectiveness 
above other values would  be a police state."

In countries such as China, the police can stop  anybody, anywhere 
and detain and search them for no  justifiable reason whatsoever.

This is Canada. When police officers are given free  reign to stop, 
search, or question anyone without any  legitimate reason to do so, 
our Charter of Rights and  Freedoms loses all meaning.

Harrison immediately appealed to the Supreme Court of  Canada, and 
for the sake of all of us, I hope he wins.

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Edward L. Greenspan is a Toronto criminal lawyer
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MAP posted-by: Jay Bergstrom