HOW MUCH IS TOO MUCH POLICE MISCONDUCT? JUDGES STRUGGLE TO DECIDE

OTTAWA -- A titanic struggle within the Supreme Court of Canada over
how to redesign rules that govern throwing out tainted evidence
reached a new level yesterday as the judges sought help in deciding
how much is too much police misconduct. During an appeal involving the
seizure of 35 kilos (77 pounds) of cocaine found during a flagrantly
illegal search, one judge after another expressed frustration with the
difficulty of finding a workable balance between the many conflicting
factors that arise in these battles over evidence.

They said that the case under appeal, R v. Harrison, was a classic
instance of a police officer searching a car without a valid reason,
and later lying in court in an attempt to justify his actions.

"It is never okay, I think you could say, to condone this kind of
police misconduct," Madam Justice Rosalie Abella said at one point.
"But there is a balancing that is at play. Is it ever possible to say
that one factor is more important than another?"

In the Harrison case, the court must decide whether to uphold a trial
judge's decision to admit the cocaine as evidence even though he found
that the search was a contrived and brazen breach of the defendant's
constitutional rights.

The court first set out last spring to rewrite the rules that govern
excluding tainted evidence. It has yet to deliver rulings on two
cases, R v. Grant and R v. Shephard, that were seen as its springboard
to modernizing the all-important section of the Charter that applies
to excluding evidence.

Yesterday, the judges made it clear that they are struggling with the
monumental task, and appealing to the lawyers before them for their
assistance.

"We are looking for help to finalize how the test should be ascribed,"
Chief Justice Beverley McLachlin told defence counsel Marie Henein.

Chief Justice McLachlin noted that the existing legal tests require
judges to balance such factors as the severity of the police
misconduct, the importance of the tainted evidence to the Crown's
case, the way a search and seizure was conducted, and the expectation
of privacy an individual would have in the location where the search
took place.

"It is difficult for me to understand how we keep all the factors of
this test in practice, because it all seems to boil down to one or the
other outweighing all the other factors," Chief Justice McLachlin said.

Ms. Henein urged the court not to continue sliding away from rules it
created 15 years ago, under which evidence was excluded even in murder
cases if police misconduct brought the justice system "into disrepute."

By allowing evidence to be used when an offence is serious, she said
that the courts invite police to break the law with impunity because
they are investigating a major crime.

"The seriousness of an offence is not a trump card," Ms. Henein said.
"One cannot ignore the seriousness of the Charter breach because one
is dazzled by the evidence - yet that is what happened in this case."

Scott Fenton, a lawyer for the Criminal Lawyers'Association, said that
excluding tainted evidence is an important way for the court to show
disapproval of conduct that goes against its rules. He said that it
also makes other police officers wary of breaking the law.

However, Ontario Crown counsel Michal Fairburn, a legal intervenor,
asked the court not to create inflexible rules that harm public
confidence by allowing criminals to go free to "punish" erring police
officers.

"How can we say that it is more important to condemn Charter breaches
than to prosecute, for example, a child murderer?" she asked.

Ms. Fairburn argued that trial judges are perfectly situated to
balance various factors in a case and make these judgment calls - and
that appeal courts shouldn't second guess them.