POLICE WORK IN 'CHARTER MINEFIELD,' JUDGE SAYS

A B.C. Supreme Court judge warns that police are facing a quandary and
the legal system is under strain because of the Charter of Rights and
Freedoms and conflicting decisions on the protections it affords
suspected criminals.

Sitting on a case involving the seizure of more than 225 kilograms of
cannabis (worth at least $1 million), 13 kilos of psilocybin and
$100,000 in Canadian currency, Justice Richard Blair said police
breached numerous rights of the accused.

He said that's because of the uncertainty caused by sometimes
conflicting judicial decisions over the past 25 years since the
panoply of civil rights protections were enshrined in the charter and
adopted by Parliament.

That's a bad situation, the judge said in a surprisingly strident
commentary. Police "deserve to know with clarity" what restraints they
are under, he added.

Rather than focus on the actions of the four men facing a seven-count
drug indictment, Blair noted, this continuing trial that began last
September has centred on whether veteran RCMP officers acted in such a
way as to render the evidence collected inadmissible.

He said the case is a prime example of the difficulties facing police
and the "Charter minefield" through which they must navigate to carry
out their enforcement activities.

"Given the intricacy of the law," Blair wrote, "it is little wonder
that in this case, as in other cases, particularly those involving the
drug trade, the energies expended by Crown, defence counsel, and the
court are directed not to what might innocently be thought of as the
crucial issue, that being whether the Crown has established beyond a
reasonable doubt that the accused committed the alleged offence or
offences, but with the painstakingly difficult task of ensuring that
there has been no breach of the accuseds' Charter rights by the police
during their investigation. . . .

"This is a court occupying a lower tier in the judicial hierarchy;
however, it is a court with the responsibility of adjudicating in
criminal trials where frequently the police find themselves in a
quandary as to how they can respect the rights guaranteed by the
Charter, and at the same time carry out the responsibilities imposed
on them by society in its need for protection from criminal activity."

The police investigation here lasted less than a day, the voir dire
(the trial within a trial), which led to Blair's ruling on the
admissibility of the evidence, consumed 12 days of court time.

He had to wade through a thicket of legal precedents and argument --
but he did not blame the lawyers.

"I would not want the foregoing comments to be mistakenly construed as
criticism of the counsel in this case," he said. "They performed their
tasks with considerable and commendable intellect and energy to ensure
trial fairness and the protection of their clients' rights as
guaranteed under the Charter. . . . The Charter requires restraints be
placed on police actions, but the police deserve to know with clarity
what those restraints are."

He has identified a major contemporary problem even in cases that
appear open and shut. These are the facts:

Two Mounties were performing traffic enforcement on the Trans-Canada
Highway west of Revelstoke about 7 a.m. on June 16, 2004 when a
weaving, eastbound van passed them exceeding the speed limit.

They stopped the van, and after talking with the two men in the
vehicle, became suspicious. A search of the van turned up the $100,000
hidden behind the inside quarter panels. A police dog indicated the
money smelled of illegal drugs. Police also found a two-way radio,
laptop and documents identifying another man apparently travelling
ahead.

One of the officers radioed the Golden detachment and a second vehicle
towing a U-Haul was subsequently stopped.

The man wanted by the Horsemen and another man were misleadingly told
at first they were being stopped for a vehicle check. Within an hour,
they were informed they were being held because of a proceeds-of-crime
and drug investigation.

Their trailer was later found to be stuffed with the pot and magic
mushrooms.

Even though, in the eyes of most people, the officers acted with
reasonableness -- the judge agreed with the defence lawyers and
itemized more than a half-dozen ways police breached the men's rights.

In Blair's view, for instance, the second set of suspects were
improperly questioned at the scene because they were held for about an
hour under a ruse.

That's too long, he said, given the language of Supreme Court
decisions on the right to retain and instruct counsel "without delay."
As a result, the subsequent search of the trailer was improper, too.
"The breach of the men's right to contact counsel without delay
occurred not in taking them back to Golden, but in holding them for an
inordinate length of time at the roadside before and after they were
detained for investigation," Blair decided.

"The arrests breached the men's s. 9 Charter rights not to be
arbitrarily detained or imprisoned. . . I conclude that in the
circumstances, the seizure of the U-Haul amounted to a breach of the
men's s. 8 Charter rights."

But, in the end, Blair couldn't bring himself to toss the evidence --
only to make his cri de coeur for the almost impossible position in
which the Canadian Supreme Court has placed police.

He decided people would be more affronted by the four men walking free
than by the police behaviour: "After considering and balancing the
interests of truth with the integrity of the criminal justice system, I
conclude that the exclusion of the evidence would adversely affect the
administration of justice."

No kidding.

Still, I wonder, why have such guarantees if those rights can be so
easily trampled without consequence?