PROTECTING DUE PROCESS

There is always a populist backlash when an alleged criminal beats a
strong case on a procedural technicality. But in the long term, such
apparent miscarriages of justice serve a valid purpose: Unless police
officers and Crown prosecutors are held to uncompromising standards of
lawful conduct, the government's moral authority to punish criminals
is forfeited.

That is why we applaud this month's Ontario Superior Court of Justice
decision acquitting Kevin Kahn of drug trafficking charges. Mr. Kahn
had a kilogram of cocaine in his car -- this much is not contested.
But the police who arrested him gave the judge reason to believe they
had fabricated evidence and conducted an illegal search. On this basis
alone, the judge's refusal to convict the defendant was justified: For
the judge to have decided otherwise would have signalled that
authorities can bend the rules as they please.

The consequences that ensue when authorities do not adequately protect
the rights of accused criminals are on full display in neighbouring
Manitoba.

In that province, unreliable hair-comparison evidence appears to have
generated a series of wrongful convictions in recent years. One man,
James Driskell, was in prison for nine months before finally being
able to convince provincial authorities to release the hair samples
that had formed the basis of his murder conviction. It took another
decade before he learned that the results of new DNA tests had, in
effect, exonerated him.

Since then, two other men convicted in Manitoba courts on
hair-comparison evidence have been similarly exculpated by DNA
testing. Yet even after Mr. Driskell's dramatic wrongful conviction
was brought to light, Manitoba authorities had to be shamed into the
other re-evaluations by Mr. Driskell's defence attorney.

The majority of police and Crown attorneys are honest people who
follow the rule book. But the temptation to provide less than due
process will always be high in cases where they are subjectively sure
of an accused criminal's guilt. That is why it is so important that
courts remain diligent about exposing state agents' unlawful conduct
and providing defendants with access to exculpatory evidence.

In the short run, the immediate beneficiary of such diligence is
obviously the criminal defendant -- Canada's Khans and Driskells. In
the long run, however, it is all of society that benefits. If police
feel they have carte blanche, the next person whose civil liberties
are violated could be you.