Pubdate: Sat, 18 Jul 2009 Source: Ottawa Citizen (CN ON) Copyright: 2009 The Ottawa Citizen Contact: http://www.canada.com/ottawacitizen/letters.html Website: http://www.canada.com/ottawacitizen/ Details: http://www.mapinc.org/media/326 Author: David Akin, The Ottawa Citizen Referenced: The rulings http://scc.lexum.umontreal.ca/en/2009/2009scc32/2009scc32.html http://scc.lexum.umontreal.ca/en/2009/2009scc34/2009scc34.html http://scc.lexum.umontreal.ca/en/2009/2009scc35/2009scc35.html and http://scc.lexum.umontreal.ca/en/2009/2009scc33/2009scc33.html COURT REFINES LINE WHERE RIGHTS CLASH WITH WRONGS Supreme Court Rulings Clarify Balance Between Charter, Police Searches The Supreme Court of Canada, ruling Friday in a quartet of separate but related cases, acquitted a man of drug-trafficking charges though he was caught with 35 kilograms of cocaine and upheld a conviction against a man for carrying a concealed loaded revolver. In all four cases, defence lawyers claimed that police obtained key evidence illegally, in violation of protections spelled out in the Charter of Rights and Freedoms. The rulings more precisely define the balancing act a judge is often called on to make between an accused person's constitutional right to be protected from unreasonable search and seizure and arbitrary detention against society's right to justice. In the judgments, the court seemed to suggest that judges in the future should pay close attention to the conduct of police, condoning a Charter violation by police that was "neither deliberate nor egregious" in the firearms case, but throwing out the conviction of a drug trafficker after agreeing with a lower court that the arresting officer displayed "brazen and flagrant" disregard for the accused's Charter rights. "These are protections that law-abiding Canadians take for granted and courts must play a role in safeguarding them, even when the beneficiaries are involved in unlawful activity," Chief Justice Beverley McLachlin wrote in the judgment that acquitted the drug trafficker. The rulings were widely anticipated in the legal community. A judge who lets the drug trafficker go free "on a technicality" related to a Charter violation can get criticized for being "soft on crime." But judges who let police get away with breaking the law when they investigate crimes raises the ire of those trying to protect the civil liberties of all Canadians. "Our worst fear was that the court might respond to fear-mongering that has been aimed at judges who apply the Charter in real cases. It didn't," said Frank Addario, a Toronto defence lawyer speaking on behalf of the Criminal Lawyers Association. "While it rewrote the test for excluding evidence, it gave some hope to those who expect the courts to be the guardian of Canadians' constitutional rights." In the drug-trafficking case, the accused, Bradley Harrison, was behind the wheel of an SUV in the middle of the day on Oct. 24, 2004, on a highway in Northern Ontario near Kirkland Lake. An Ontario Provincial Police officer thought it suspicious that Harrison was driving at the legal speed limit because, as the police officer testified at trial, everyone drove over the speed limit on the section of highway he was patrolling. After pulling Harrison over, he discovered that Harrison had his licence suspended. He was arrested at that point. At that point, the OPP officers searched the vehicle and found a box containing 35 kilograms of cocaine. The court ruled that not only were there no grounds to pull the vehicle over the in the first place -- Harrison was obeying the speed limit -- but the officer also had no grounds to search the vehicle. The court said that to admit the evidence obtained by the illegal search -- the cocaine -- would bring the administration of justice into disrepute. - --- MAP posted-by: Richard Lake