Pubdate: Wed, 12 Mar 2008 Source: National Post (Canada) Copyright: 2008 Southam Inc. Contact: http://www.nationalpost.com/ Details: http://www.mapinc.org/media/286 Author: A. Alan Borovoy Note: A. Alan Borovoy is General Counsel for the Canadian Civil Liberties Association. PROTECTING CANADIANS FROM ILLEGAL EVIDENTIARY SEIZURES A recent decision of the Ontario Court of Appeal could well diminish the protections afforded by Canada's Charter of Rights and Freedoms. Under the facts of the case, a police officer intercepted a driver and proceeded to search his car -- without having any prior reasonable basis to suspect any misconduct. The result of this police breach of the Charter was the discovery and seizure of some 77 pounds of cocaine. The driver was subsequently charged with the possession of an illicit drug for the purpose of trafficking. A key issue in the resulting trial concerned the admissibility into evidence of the seized cocaine. The judges held that, even though they considered the officer's conduct to be "extremely serious," they would not keep the cocaine out of court. Under the Canadian Charter, improperly obtained evidence is not automatically excluded. In Canada, such evidence is to be excluded if its admission "would bring the administration of justice into disrepute." According to the judges in this case, the actions of the officer, as bad as they were, "pale in comparison to the criminality involved in the possession for the purpose of distribution of 77 pounds of cocaine." The judges effectively ruled that the exclusion of the tainted evidence would be unacceptable to the public. I can't imagine, however, a situation in which the public would not prefer a result that helped to convict a suspected criminal. When, then, would the courts exclude the fruits of an unlawful search? Perhaps in a case of failing to obtain a dog license. For the sake of the Charter's viability, therefore, the courts should ask themselves a different question: not what outcome the public would prefer, but what would earn its respect. Of necessity, such an analysis cannot stress the short-term result in any particular cases. It must focus on the long-term impact of many cases. The downside of the Court's current approach is that, over time, the public will become accustomed to the spectacle of police misconduct unaccompanied by any sanctions. Such an outcome will create public cynicism about the integrity of our justice system. Surely, that would bring the administration of justice into disrepute. The current controversy reminds me of the public debates that preceded the adoption of the Charter. Certain opponents of the exclusionary rule for tainted evidence argued that the proper response to police misconduct is not the exclusion of the evidence; it's the sanctioning of the officers. Those of us who favoured an exclusionary rule for Canada considered this argument to be disingenuous. There is no way, we contended, that police forces would sanction an officer whose misconduct helped to nail a suspect they wanted to get. But, even at this late stage, I'm inclined to call the other side's bluff. If, by the time a case gets to trial, the delinquent police officers have been charged or disciplined, perhaps the courts might consider this to be one of the factors in favour of admitting the tainted evidence. By contrast, if no such action has been taken, the courts should lean in the opposite direction. At the very least, such an approach would help to produce conspicuous sanctions for police wrong-doing. I won't pretend that this idea is devoid of problems. But given the court's regrettable decision, it is clear that something must be done to enforce the rights that are supposed to be protected by our Charter. A. Alan Borovoy is General Counsel for the Canadian Civil Liberties Association. - --- MAP posted-by: Derek