PERHAPS IT'S TIME TO TWEAK THE CHARTER

Unreasonable Search Clause Letting Some Criminals Walk Free

We know, beyond any doubt, that the MV Bakur contained 1,630 kilograms
of marijuana when it entered Canadian waters last May. We also know
the identities of the vessel's owner and crew.

However, because of improper police procedure, the Crown has abandoned
the prosecution of an offence carrying a maximum penalty of life in
prison.

The Canadian Charter of Rights and Freedoms extends its protection to
those suspected of all crimes. In a 1997 decision of the Supreme Court
of Canada (R. v. Feeney), police had investigated a recent violent
murder.

The murder scene was spattered with the victim's blood. Acting on a
tip, the police entered a dwelling without legal authorization. There
they encountered Michael Feeney. Upon seeing blood on his shirt, they
arrested him and seized the shirt.

Because of the lack of a search warrant, the Supreme Court held that
the bloody shirt should have been excluded from the trial. (Other
evidence was also excluded, due to other breaches of the charter).
Feeney's conviction for murder was overturned.

Under Section 8 of the charter, everyone has the right to be secure
against unreasonable search or seizure. When evidence is obtained by
means that infringe that right, it must be excluded from the trial if
including it "would bring the administration of justice into disrepute."

Thus, in the cases of the Bakur and R. v. Feeney, the exclusion of
evidence under the charter prevented convictions of people known to
have done criminal acts.

Most Canadians agree that adopting a written charter in 1982 was a
progressive, civilized step. After all, it is important to protect
individual rights, including the right to privacy.

We do not want those who wield power given to them by the state to be
able to abuse that power arbitrarily or for their own purposes. But
after 25 years, are we sure our charter as worded does the job we
intended it to do?

I do not think that the charter was intended to confer upon anyone a
right to break the law. It should not overtly enable or protect
criminal activity, nor shield wrongdoers from the consequences of
their behaviour.

It should not be considered an infringement of rights when the state
seizes private property in order to detect criminal activity, as long
as it is not curtailing or deterring any other, non-criminal, activity.

Is there a way to express in the charter the right to be free from
unreasonable search and seizure, without creating a shield for
criminals? Can we do this and simultaneously assure ourselves that the
police will be held accountable for illegal activities?

I would like to see Canadians undertake a five-year experiment. We
would revise the charter to say that, where the law had not been
followed in the course of obtaining physical evidence, a person who
has committed an indictable offence could not ask the court to exclude
that evidence at trial. Our experiment would be limited to indictable
offences, the more serious class of crimes.

I limit this proposal to actions regarding property. I do not suggest
any change to the charter protections of the person, such as the right
to counsel and protections against coerced confessions,
self-incrimination and arbitrary arrest.

I do not propose that we go so far as to allow the use at trial of
physical evidence obtained directly from a suspect's body without due
process of law. The illegal collection of samples of breath, blood,
urine or other bodily substances would still be protected by the
charter guarantee of security of the person.

To reassure ourselves that this relaxation of the limitations placed
on the state cannot be abused, we would need to ensure that effective,
properly funded, and fully independent police complaints organizations
are available in every jurisdiction.

The charter already provides that persons whose rights have been
denied can apply to the courts for a remedy. For example, if the
police conduct a search without a warrant or other legal authority and
do not find evidence of criminal activity, they are open to civil
suits including trespass, false arrest, assault and conversion
(wrongful taking) of property.

There is no reason why the police could not also be made subject to
criminal charges where their conduct warranted it.

Because of these safeguards, the police would have every reason to
follow the existing procedures for obtaining and executing search
warrants. If the search of the Bakur had found nothing but rotting
fish, the police would be facing disciplinary proceedings and a huge
civil lawsuit for the damage they caused.

But upon finding 1,630 kilograms of marijuana, the trial for
possession of a controlled substance could proceed. The crew could
still try a civil suit for trespass, but the common law usually does
not allow people to sue for damages arising out of their own criminal
acts.

At the end of our five-year experiment, we could ask ourselves if this
change made us feel less secure, less able to keep our legitimate
activities away from state or police scrutiny. If so, we could
acknowledge that the experiment was a failure. We would remove the new
language from the charter, and apologize to those of our fellow
citizens who were affected by it.

On the other hand, if we felt that criminal activity was being
detected, prosecuted and therefore deterred more effectively, and that
our privacy was just as respected as under the current charter, we
just might decide to make the experiment permanent.