LOCAL CHARGES MIRROR LANDMARK APPEAL COURT CASE

In a case bearing striking similarities to one currently before the
courts in Orangeville, Ontario's highest court has concluded, in
effect, that the Charter of Rights and Freedoms doesn't always protect
Canadians from unreasonable searches and seizures.

In the Orangeville case, police conducted a search of Timothy Osmond's
vehicle and residence after he was stopped for allegedly running a
stop sign opposite Parkinson Centennial School. As a result of the
searches he was arrested on drug charges, is free on $3,500 bail and
is to appear in court again on Feb. 25, although his only apparent
driving infraction was disobeying the stop sign at Madison and
Lawrence avenues.

In the case before the Ontario Court of Appeal, an OPP constable in
2004 stopped a rented SUV driven by Bradley Harrison because it lacked
a front licence plate. The constable searched the SUV after arresting
Mr. Harrison for driving while his licence was under suspension, and
found 35 kilos of cocaine in two boxes in the back seat.

In that case, there had not been a traffic violation, since the SUV
was plated in Alberta, where there is no requirement for a front
marker. The constable told the trial court that he became suspicious
when he observed discarded food containers in the rear seat, and
ascertained that the vehicle was being driven non-stop from Vancouver
to Toronto.

He said he conducted the search in the interests of personal and
public safety. The trial judge, Superior Court Justice Norman Karam,
said he didn't entirely believe the officer, but admitted the drug
evidence on the basis that any wrongful act on the part of the
constable "pales in comparison with the criminality involved in
possession" of 77 pounds of cocaine with a street value of between
$2.4- million and almost $4.6- million.

Representing Mr. Harrison at the appeal court, lawyers Marie Henein
and Margaret Bojarowska relied on Section 8 of the Charter, which says
everyone "has the right to be secure against unreasonable search or
seizure." At law, however, there have been exceptions including "hot
pursuit."

Although normally warrants would be required for a search of a
vehicle, the appeal court in 1988 ruled that unwarranted searches of
vehicles are justified when there are reasonable grounds to believe
that the vehicle contains contraband. Also, in 1991, it ruled that the
power to search without warrant might be found "either in statute or
at common law."

The Crown, represented by lawyer Rick Visca, relied in part on Section
24 (2), which states generally that evidence obtained wrongfully may
be entered if its exclusion would bring the administration of justice
into disrepute.

"Just as there is no automatic exclusionary rule, there can be no
automatic inclusion of evidence either," wrote two of the three appeal
court judges. "The focus of the inquiry under this head of analysis is
to balance the interests of truth with the integrity of the legal system."

But there was a dissenting opinion by the third judge, Justice
Eleanore Cronk.

"In these circumstances, this question arises: at what point does
serious police misconduct, which led to the discovery and seizure of
real evidence of a substantial quantity of drugs, so taint the
administration of justice as to require the exclusion of the evidence?
The answer requires a delicate balancing of society's commitment to
the protection of individual liberties guaranteed by the Charter and
its interest in the effective detection and prosecution of serious
crime.," she wrote.

"My colleagues would uphold the admission of the cocaine primarily on
the ground that this court should defer to the trial judge's
admissibility ruling. On this record, I disagree. ... With respect, I
am of the opinion that the trial judge erred in his approach to the
requisite balancing exercise ... ."

She said it was "not a case where a police officer made a good faith
error in judgment, misunderstood the extent of his authority, engaged
in trivial or inadvertent constitutional violations, or is being held
to an unduly harsh assessment with the benefit of hindsight. This is a
case where the police officer's actions, both at the time of the
detention of the appellant and the search of the vehicle, were
deliberate, without legal justification, and disdainful of the rights
and freedoms protected by the Charter."