It's enough to make a good cop cry

We expect a lot from the police. We expect them to help clean up crime
ridden neighbourhoods, knowing full well that they are risking their
lives when they do so. That's why the police shake their heads in
amazement every time a judge acquits an obviously guilty person and
releases the criminal back into the neighbourhood.

Here's what happened one night in January 2006 in a Toronto apartment
complex known for its drug use, drug trafficking, guns and gang
violence. The police were present with the permission of the landlord.
Two officers were walking up a stairwell when they smelled marijuana.
They opened the door to the ninth floor to find a man tightly
clenching a knapsack.

The police asked "Hey buddy, what are you doing?" He said the one
thing criminals are apt to say in this situation, namely "Oh s--t." He
then did what criminals in this situation are apt to do: He ran. He
also grabbed a shopping cart and tried to block the pursuing officers.
He raced to another stairwell and threw away his knapsack. For much of
this time the police are yelling "Stop, police."

The police finally tackle the "suspect" on another floor. They
retrieve the knapsack and in what must have been a huge surprise found
680 grams of cocaine, two digital scales and three cellphones. And, of
course our suspect had cash, $1,720 of it in his pocket.

Not Difficult

Does this seem like a difficult case to you? I didn't think so. But it
was a difficult case for the trial judge who acquitted this "suspect."

You see, the judge concluded that the police had no good reason for
stopping the "suspect" and therefore everything that happened from the
"Hey buddy" was a gross violation of the rights of this fine
upstanding citizen.

Worse yet, this shameful conduct by the police was so egregious that
the admission of the evidence found in the knapsack would bring the
administration of justice into disrepute. Hence no evidence. Hence no
conviction.

I know judges have a difficult job. We expect them to protect our
rights, but we also expect them to convict where the evidence cries
out for a conviction.

We get upset when they allow rights of citizens to be violated, but we
get even more upset when they release obviously guilty people.

So I'm prepared to give judges a lot of leeway in the difficult cases.
But really, how difficult was this case?

The suspect ran when he saw the police. He used or tried to use force
to obstruct the police. He tried to get rid of his knapsack, the one
he had been holding so tightly. Oh, did I mention it was late in the
evening and this was an apartment building in a complex known for
drugs, guns and gangs and there was cocaine in the knapsack?

Surely once a suspicious person tries to get rid of a knapsack by
throwing it away there is no reason why the police cannot open the
knapsack.

This isn't the same as the police rifling through the garbage you set
out in front of your house or toss down the garbage chute. That's a
harder issue and one that the Supreme Court of Canada is going to
consider later this year when it hears argument in the Russell Stephen
Patrick case.

In that case the Alberta Court of Appeal ruled 2-1 that there is no
expectation of privacy in household garbage so the garbage is fair
game for police to search without a warrant.

Little Argument

There should be little argument however in a case where a suspect
tries to get rid of something while trying to escape from the police.
In those circumstances it is ludicrous to think the suspect has any
expectation of privacy in the object tossed away.

There's a reason why we have appellate courts. It's to deal with and
reverse these sorts of decisions and that's exactly what the Ontario
Court of Appeal did about one week ago when it allowed the Crown's
appeal, set aside the acquittals and ordered a new trial for Peter
Nesbeth.

The OCA was pretty brief in its reasons -- only 26 paragraphs, but the
message to trial judges should be loud and clear.