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