SUPREME COURT SET TO CONSIDER PRIVACY RIGHTS

Growing Chasm Between Civil Libertarians And Interests Of Law
Enforcement Agencies

When Ontario Provincial Police Constable Brian Bertoncello spotted a
rented SUV being driven sedately along a Northern Ontario highway at
precisely the speed limit on Oct. 24, 2004, it immediately set off his
internal radar.

Switching on his flashing lights, Constable Bertoncello brought the
vehicle to a stop. "It's very rare that you get somebody driving
directly on the speed limit," he explained later.

The officer's suspicions grew as he questioned the nervous-looking
occupants of the vehicle, Bradley Harrison and Sean Friesen, who had
driven non-stop from Vancouver.

Constable Bertoncello proceeded to rip open two boxes in a storage
compartment at the back of the SUV - uncovering 35 kilograms of
cocaine with a street value of between $2.4-million and $4.6-million,
and launching a major Charter of Rights case that will reach the
Supreme Court of Canada today.

Police and criminal lawyers are watching the case intently, as the
court will decide whether the immensity of the drug seizure justified
it being admitted as evidence at Mr. Harrison's trial -
notwithstanding the damage to his privacy rights.

"Rights are not free," lawyers Frank Addario and Jonathan Dawe argue
in a brief to the court on behalf of the Canadian Civil Liberties
Association.

"The police would catch more criminals if they did not have to obey
the law and respect the Charter.

"It is one of the inevitable consequences of entrenching rights in the
Constitution and taking them seriously that some criminals will escape
justice who might otherwise be caught and punished," they said.

All parties are agreed on one point: Constable Bertoncello's impetuous
conduct was irresponsible. At Mr. Harrison's trial, Mr. Justice Norman
Karam of the Ontario Superior Court described the stop as "somewhat
incredible ... brazen and flagrant.

"I am satisfied that his explanations for stopping the vehicle and
detaining the two accused are contrived and defy credibility. I'm
satisfied that the breaches were extremely serious," he said.

But that is as far as Judge Karam was willing to go. He refused to
exclude the evidence, concluding that the breach of Mr. Harrison's
rights "paled" in comparison to his criminal conduct.

In a legal brief on behalf of Mr. Harrison, defence counsel Marie
Henein implored the court not to gut a key section of the Charter of
Rights. She warned that it is fast reaching a point where evidence is
not excluded unless it involves an innocuous amount of marijuana, or
the defendant has been physically beaten by the police.

Listing 15 recent cases where lower-court judges permitted the use of
tainted evidence, Ms. Henein pronounced it "an alarming pattern."

However, federal prosecutors James Martin and Rick Visca maintain that
the public is scandalized whenever an erring police officer is
"punished" by having a major drug seizure excluded from evidence.

They said the embarrassment of being admonished by a judge amounts to
sanction enough for a police officer.

"Any suggestion that the protections afforded by the Charter are
somehow eviscerated in such instances is pure hyperbole," they added.

The growing chasm between civil libertarians and those sympathetic to
the interests of law enforcement was evident in a 2-1 split when the
Ontario Court of Appeal heard the Harrison case this year.

Associate Chief Justice Dennis O'Connor and Mr. Justice James
MacPherson ruled that the Charter breaches had been minimal compared
with the horrors of large-scale drug trafficking. Writing in dissent,
Madam Justice Eleanore Cronk decried the growing erosion of liberties
that takes place when police are permitted to flout the laws governing
detention and seizure.