WHEN RIGHTS STEER US WRONG

Supreme Court of Canada Uses Charter Argument in Dismissal of Drug
Charges

Bradley Harrison was stopped by an OPP officer in Kirkland Lake while
driving an SUV to Toronto with 77 pounds of cocaine hidden in a rear
cargo area.

Yet Harrison's drug-trafficking charges were dismissed by the Supreme
Court of Canada (SCC) this month due to Charter violations.

Donahue Grant was stopped by police while walking on a sidewalk with a
concealed, loaded revolver in a high-crime area near a school. His
firearms conviction was upheld by the SCC in spite of Charter violations.

In both cases the SCC dealt with an obviously guilty person, yet only
one was convicted.

The distinction turns on the application of section 24 of the Charter
which mandates courts to exclude evidence obtained in violation of
Charter rights where the admission of the evidence would "bring the
administration of justice into disrepute."

I think most reasonable people would agree that even guilty people
should go free if their Charter rights have been violated in an
extreme manner. No reasonable person wants to see a police state where
suspects are beaten, or homes are searched without proper
justification. The extreme cases are easy.

It's cases like Harrison's and Grant's that are difficult.

An OPP constable noted that Harrison's vehicle didn't have a front
licence.

He did a U-turn and activated his roof light to pull the vehicle over
while he contacted radio dispatch. He discovered the vehicle had been
rented in Vancouver and, being registered in Alberta, did not require
a front plate.

No Legal Grounds

Still, having started to pull over the vehicle, he carried on even
though there were no legal grounds to do so.

The constable knew that rental cars were sometimes used to transport
drugs and any trip from Vancouver was suspect. He was also suspicious
about the vehicle being driven at the exact speed limit on that part
of the highway.

Once he pulled the vehicle over, he saw that the SUV was "littered
with food and drink containers" and discovered that the driver's
licence was under suspension. The drugs were found when the SUV was
searched "incident to arrest," although the search didn't relate to
the arrest.

The wrongful detention and warrantless search put the admissibility of
the cocaine evidence into play. In a 6-1 decision the SCC ruled that
the police conduct was "reckless" and showed a "blatant disregard for
Charter rights."

This, coupled with a "much more than trivial" impact on "liberty and
privacy" trumped society's interests in having an obviously guilty
person convicted.

There's no doubt that the police conduct here wasn't pristine, but the
judges' criticism still seems extreme. It's not unusual for police to
pull over vehicles. This can be done for all sorts of valid reasons
and drivers understand that even when driving at the speed limit they
might be pulled over. There is no guarantee of privacy on a public
road. The detention was brief and not the result of any improper
malice. There was no violence or aggressive police conduct. The search
took place after police discovered the suspended licence and there
were several indications that drugs might be present.

Grant attracted the attention of police with his low-on-the-hips baggy
pants. He apparently "fidgeted with his coat and pants" in a
suspicious manner and "stared" at two plain clothes police officers in
a car.

Following a six-minute discussion with police, Grant admitted he had a
gun and was arrested. The detention was deemed unlawful and Grant
wasn't read his rights, yet the discovery of the revolver was
admissible, and the SCC upheld the firearms conviction. Apparently, in
the opinion of the judges, the police misconduct here was "neither
deliberate nor egregious" and the breach of Grant's interests "was not
at the most serious end of the scale."

The admission of the evidence would not "bring the administration of
justice into disrepute," the SCC concluded.

I may be wrong, but could this be a case of judges being softer on
drug offences and harder on gun offences, particularly with a loaded
gun in a high-crime area near a school?