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.
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MAP posted-by: Derek