Pubdate: Tue, 2 Sep 2008
Source: Sentinel Review (CN ON)
Copyright: 2008 Osprey Media
Contact: http://www.woodstocksentinelreview.com/feedback1/LetterToEditor.aspx
Website: http://woodstocksentinelreview.ca/
Details: http://www.mapinc.org/media/2385
Author: Alan Shanoff
Bookmark: http://www.mapinc.org/mjcn.htm (Marijuana - Canada)
Bookmark: http://www.mapinc.org/coke.htm (Cocaine)

IT'S ENOUGH TO MAKE A GOOD COP CRY

We expect a lot from the police. We expect them to help clean up 
crime-ridden neighbourhoods, knowing full well that they are risking 
their lives when they do so. That's why the police shake their heads 
in amazement every time a judge acquits an obviously guilty person 
and releases the criminal back into the neighbourhood.

Here's what happened one night in January 2006 in a Toronto apartment 
complex known for its drug use, drug trafficking, guns and gang 
violence. The police were present with the permission of the 
landlord. Two officers were walking up a stairwell when they smelled 
marijuana. They opened the door to the ninth floor to find a man 
tightly clenching a knapsack.

The police asked "Hey buddy, what are you doing?" He said the one 
thing criminals are apt to say in this situation, namely "Oh s--t." 
He then did what criminals in this situation are apt to do: He ran. 
He also grabbed a shopping cart and tried to block the pursuing 
officers. He raced to another stairwell and threw away his knapsack. 
For much of this time the police are yelling "Stop, police."

The police finally tackle the "suspect" on another floor. They 
retrieve the knapsack and in what must have been a huge surprise 
found 680 grams of cocaine, two digital scales and three cellphones. 
And, of course our suspect had cash, $1,720 of it in his pocket.

Does this seem like a difficult case to you? I didn't think so. But 
it was a difficult case for the trial judge who acquitted this "suspect."

You see, the judge concluded that the police had no good reason for 
stopping the "suspect" and therefore everything that happened from 
the "Hey buddy" was a gross violation of the rights of this fine 
upstanding citizen.

Worse yet, this shameful conduct by the police was so egregious that 
the admission of the evidence found in the knapsack would bring the 
administration of justice into disrepute. Hence no evidence. Hence no 
conviction.

I know judges have a difficult job. We expect them to protect our 
rights, but we also expect them to convict where the evidence cries 
out for a conviction.

We get upset when they allow rights of citizens to be violated, but 
we get even more upset when they release obviously guilty people.

So I'm prepared to give judges a lot of leeway in the difficult 
cases. But really, how difficult was this case?

The suspect ran when he saw the police. He used or tried to use force 
to obstruct the police. He tried to get rid of his knapsack, the one 
he had been holding so tightly. Oh, did I mention it was late in the 
evening and this was an apartment building in a complex known for 
drugs, guns and gangs and there was cocaine in the knapsack?

Surely once a suspicious person tries to get rid of a knapsack by 
throwing it away there is no reason why the police cannot open the knapsack.

This isn't the same as the police rifling through the garbage you set 
out in front of your house or toss down the garbage chute. That's a 
harder issue and one that the Supreme Court of Canada is going to 
consider later this year when it hears argument in the Russell 
Stephen Patrick case.

In that case the Alberta Court of Appeal ruled 2-1 that there is no 
expectation of privacy in household garbage so the garbage is fair 
game for police to search without a warrant.

There should be little argument however in a case where a suspect 
tries to get rid of something while trying to escape from the police. 
In those circumstances it is ludicrous to think the suspect has any 
expectation of privacy in the object tossed away.

There's a reason why we have appellate courts. It's to deal with and 
reverse these sorts of decisions and that's exactly what the Ontario 
Court of Appeal did about one week ago when it allowed the Crown's 
appeal, set aside the acquittals and ordered a new trial for Peter Nesbeth.

The OCA was pretty brief in its reasons -- only 26 paragraphs, but 
the message to trial judges should be loud and clear. 
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MAP posted-by: Richard Lake