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