MORE ILLEGAL SEARCH EVIDENCE ALLOWED

Ends-Justify-Means Approach To Justice: Critics

A Canadian phenomenon in the criminal justice system was highlighted
again by two recent rulings by provincial courts of appeal. Evidence
obtained by police after a breach of an individual's constitutional
rights may still be used in court in Canada, unlike the United States
where it would automatically be excluded.

In one of the many qualifiers contained in the Canadian Charter of
Rights and Freedoms, a judge must decide if it would "bring the
administration of justice into disrepute" to admit evidence that was
obtained by improper police conduct.

The so-called Collins analysis, from a 1987 Supreme Court decision,
involves a balancing of many factors, including the conduct of police.

Increasingly, many courts appear to be influenced by what is found
during a search.

Substances such as marijuana found in a car as a result of an illegal
search might be excluded, while hard drugs or weapons are more likely
to be allowed as evidence in a trial. Critics of this approach suggest
the courts are endorsing an "end-justifies-the-means" approach to policing.

Ontario Court of Appeal Justice Eleanore Cronk accused two of her
colleagues of this kind of endorsement in a sharply worded dissent
last week in a case that involved the seizure of 35 kilograms of
cocaine in northern Ontario.

An SUV driven by Bradley Harrison was stopped by an Ontario Provincial
Police officer near Kirkland Lake, in October, 2004.

The vehicle was travelling at the speed limit, but had no front
plate.

The officer testified that he saw the vehicle had an Alberta licence
so it did not need a plate.

He admitted having no grounds to stop the car, but once he learned the
driver had a suspended licence, he searched the vehicle without a
warrant and found the cocaine .

Harrison was convicted, after the trial judge admitted the evidence,
even though he found the officer deliberately breached Charter rights
against an unreasonable search .

The trial judge's ruling was upheld by Court of Appeal Justices James
MacPherson and Dennis O'Connor because of the seriousness of the offence.

If the officer had entered some-one's home (there is lower legal right
to privacy in a car) or made threats, then the evidence might have
been excluded, the judges said.

Police misconduct is just "one factor," the majority decision
said.

In unusually strong words for a judge, the dissent by Judge Cronk
suggested her colleagues improperly played down the actions of the
officer as "flawed" decision-making. While the majority said it was
not condoning the officer's actions, "the effect of my colleagues'
reasons is to do precisely the opposite," wrote Judge Cronk.

She noted the officer "knowingly" violated the constitutional rights
of the occupants of the car and then gave "contrived" testimony during
the trial.

Despite the amount of drugs seized, allowing it to be used as evidence
at a trial would amount to an "end-justifies-the-means" police
practice, Judge Cronk said. "That theory is not the foundation of our
constitutional order and system of criminal justice," she wrote.

The public however, may not share the concern of Judge Cronk,
suggested Sanjeev Anand, a law professor at the University of Alberta,
who has practised as a prosecutor and defence lawyer.

"You are not going to have a large hue and cry about violations of the
rights of people who may be factually guilty," Mr. Anand said.

Still, he stressed that it is only the improper searches by police
where drugs or other illegal items are found, that the public ever
hears about.

"What use are these [Charter] rights if there is no enforcement of
these rights," he asked.

Excluding evidence is the only "meaningful remedy" available to judges
if there has been police misconduct, Mr. Anand said. "The courts can't
discipline police."

Mr. Anand suggested the Ontario Court of Appeal had been more
deferential to police misconduct than other courts in the country, if
what is described as "serious" evidence is discovered in a search.

In a recent Saskatchewan Court of Appeal ruling, a three-judge panel
excluded the seizure of a small amount of drugs. It found a police
officer improperly arrested Archibald Janvier and searched his car
without a warrant after smelling burnt marijuana.

There were no reasonable grounds that the driver was in the process of
"committing" the offence of marijuana possession, which would permit a
search, the court said.

"It becomes a slippery slope," if police are permitted to stop people
and conduct searches without following established rules, said Ronald
Piche, who represented Mr. Janvier. "Unless police powers are closely
monitored by the courts, there is a potential to abuse these powers."

Upholding rights enshrined in the Charter benefits everyone, not just
people suspected of criminality, he suggested.

In the case of his client, police could easily have obtained a
"telewarrant" so that the search of the car was lawful, Mr. Piche said.

The Charter does not hinder police, "it just requires them to be a
little more careful," he said.

In April, the Supreme Court of Canada is scheduled to hear an appeal
of an Ontario case that could further expand police search powers.

An 18-year-old man was stopped by Toronto police for walking
"suspiciously" during the day in a "high crime" area. After
questioning by the officers, he admitted that he was carrying a loaded
gun.

In a 2006 ruling, the Ontario Court of Appeal concluded the young man
was arbitrarily detained by police, but that the concerns of
increasing gun violence in Toronto had to be given greater weight than
a violation of individual rights.