SUPREME COURT RIGHT TO THROW OUT KL DRUG CASE

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.

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?