COURT REFINES LINE WHERE RIGHTS CLASH WITH WRONGS

Supreme Court Rulings Clarify Balance Between Charter, Police
Searches

The Supreme Court of Canada, ruling Friday in a quartet of separate
but related cases, acquitted a man of drug-trafficking charges though
he was caught with 35 kilograms of cocaine and upheld a conviction
against a man for carrying a concealed loaded revolver.

In all four cases, defence lawyers claimed that police obtained key
evidence illegally, in violation of protections spelled out in the
Charter of Rights and Freedoms.

The rulings more precisely define the balancing act a judge is often
called on to make between an accused person's constitutional right to
be protected from unreasonable search and seizure and arbitrary
detention against society's right to justice.

In the judgments, the court seemed to suggest that judges in the
future should pay close attention to the conduct of police, condoning
a Charter violation by police that was "neither deliberate nor
egregious" in the firearms case, but throwing out the conviction of a
drug trafficker after agreeing with a lower court that the arresting
officer displayed "brazen and flagrant" disregard for the accused's
Charter rights.

"These are protections that law-abiding Canadians take for granted and
courts must play a role in safeguarding them, even when the
beneficiaries are involved in unlawful activity," Chief Justice
Beverley McLachlin wrote in the judgment that acquitted the drug trafficker.

The rulings were widely anticipated in the legal community. A judge
who lets the drug trafficker go free "on a technicality" related to a
Charter violation can get criticized for being "soft on crime." But
judges who let police get away with breaking the law when they
investigate crimes raises the ire of those trying to protect the civil
liberties of all Canadians.

"Our worst fear was that the court might respond to fear-mongering
that has been aimed at judges who apply the Charter in real cases. It
didn't," said Frank Addario, a Toronto defence lawyer speaking on
behalf of the Criminal Lawyers Association. "While it rewrote the test
for excluding evidence, it gave some hope to those who expect the
courts to be the guardian of Canadians' constitutional rights."

In the drug-trafficking case, the accused, Bradley Harrison, was
behind the wheel of an SUV in the middle of the day on Oct. 24, 2004,
on a highway in Northern Ontario near Kirkland Lake.

An Ontario Provincial Police officer thought it suspicious that
Harrison was driving at the legal speed limit because, as the police
officer testified at trial, everyone drove over the speed limit on the
section of highway he was patrolling.

After pulling Harrison over, he discovered that Harrison had his
licence suspended. He was arrested at that point.

At that point, the OPP officers searched the vehicle and found a box
containing 35 kilograms of cocaine.

The court ruled that not only were there no grounds to pull the
vehicle over the in the first place -- Harrison was obeying the speed
limit -- but the officer also had no grounds to search the vehicle.
The court said that to admit the evidence obtained by the illegal
search -- the cocaine -- would bring the administration of justice
into disrepute.