EXCLUDING EVIDENCE DOESN'T MAKE FOR BETTER POLICING

What should the courts do when police officers violate a suspect's
rights under the Charter of Rights and Freedoms -- keep the resulting
evidence out of court and risk letting a criminal walk free? Or admit
the evidence and risk signalling to police that it's perfectly OK to
trample suspects' rights in future?

The Charter itself says such evidence must be excluded if admitting it
"would bring the administration of justice into disrepute."

This seems to me like a reasonable rule, and in many cases its outcome
would be obvious. A confession obtained by torture, for instance,
would almost never be admitted -- first, because such confessions are
notoriously unreliable, and second, because brutality transforms law
enforcement agents into criminals themselves. Both factors would
undermine public confidence in the justice system.

But a mindset seems to have developed among many criminal defence
lawyers that Canada should follow in the footsteps of the United
States, where for decades all civil rights infringements, no matter
how slight, have resulted in the exclusion of tainted evidence, no
matter how reliable or persuasive. Canada has already been heading in
that direction.

That's why so many lawyers are nervous about the appeal heard by the
Supreme Court of Canada on April 24. One even described the case as
"scary stuff" that could "turn back the clock to the bad old days
before we had any real rights." The 18-year-old accused, Donnohue
Grant, had been confronted by three police officers on a Toronto
street in daylight and asked whether "he had anything on him that he
shouldn't." He admitted first having some marijuana, then a gun.
Police arrested and searched him, seizing the drugs and a loaded
revolver. At trial, he was sentenced to 18 months'
imprisonment.

The Ontario Court of Appeal held that police had indeed infringed
Grant's right not to be arbitrarily detained -- but not sufficiently
to defame

the justice system. The gun had been properly admitted into evidence,
and the conviction stood. Grant appealed again. Now the Supreme Court
will decide.

I'm as mistrustful of excessive police power as the next person --
probably more so --but the necessity of throwing out evidence in every
case of police misconduct escapes me. I see no inexorable link. Law
enforcement is not some game where the hunted have to be given a
sporting chance.

Apparently, the theory is that punishing police officers by throwing
their work away will make them mend their ways. But how punitive is that for
the errant cop? He still gets his paycheque. There are better ways of
punishing police misconduct -- ways that are far more likely to get a rogue
officer's personal attention. Victims of police misconduct can and
occasionally do charge the officers with criminal offences, or sue them
personally in civil actions, along with the police forces that employ them.

I'll bet that fear of demotion, dismissal, imprisonment or civil
liability have prevented much more police misconduct than fear of
seeing their work thrown away.

The real punishment inflicted by a strict exclusionary rule falls upon
the innocent members of society -- the future victims of genuine
criminals who escape conviction and are out on the streets to
transgress again.

Suppose, for instance, that police officers investigating a recent
murder enter some-one's home without a warrant. They find a suspect
wearing a bloody shirt, and cash belonging to the victim stashed under
the suspect's mattress. When the courts toss out such evidence -- as
the Supreme Court did in the 1997 case R. vs. Feeney-- the public
feared, justifiably, that a murderer might go scot-free. There was
widespread concern.

How common is this? According to former U. S. attorney-general Edwin
Meese, the strict U. S. rule means that "150,000 criminal cases,
including 30,000 cases of violence, are dropped or dismissed every
year because the exclusionary rule excluded valid, probative evidence."

Comparisons over time cast doubt on the theory that the exclusionary
rule makes officers significantly more rights-respecting. Pre-Charter
Canada was not, at least in my recollection, any more of a rampant
police state than it is today. And the U. S. statistics demonstrate
that despite the strict rule, cops apparently keep infringing
suspects' rights in significant numbers.

Canadian courts should resist the pressure to adopt the strict rule
that applies in the U. S.

Karen Selick is a lawyer in Belleville, Ont.