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| I don’t have a right to search you… but you won’t mind, will you? |
An Ontario (Canada) judge has ruled that unlawful search and seizures are now admissible in the interest of fighting crime.
The Ontario Court of Appeal yesterday approved the use of evidence obtained through flagrant police misconduct, saying any black eye caused to the justice system is outweighed by public interest in prosecuting a serious crime.
In a decision that even one of their fellow judges finds intolerable, a majority of the court upheld a trial judge’s decision to admit evidence of 35 kilos of cocaine found in Bradley Harrison’s rented SUV – despite the judge’s finding an OPP officer had no legal grounds to stop the vehicle, seriously infringed the Toronto man’s Charter rights and misled a court while trying to justify his actions.
The 2-1 ruling is the latest in a line of recent decisions in which the court has been accused of weakening Charter protections by refusing to exclude evidence obtained unlawfully. In a case last fall involving a gun found in a backpack at Westview Centennial Secondary School, the court said throwing out reliable evidence because of Charter violations must be balanced against public concerns about escalating gun violence.
The officer stated that his integrity was at stake when deciding whether to pull over the driver or not.
Harrison, accompanied by a friend named Sean Friesen, was driving from Vancouver to Toronto when he was stopped near Kirkland Lake in October 2004. Bertoncello said he decided to pull over the SUV because it was missing a front licence plate, though he knew a front plate wasn’t required in Alberta, where it was licensed.
Bertoncello testified he went ahead and pulled the SUV over because the emergency lights on his cruiser were flashing and cars were behind him, he felt his “integrity” as a police officer was on the line.
Harrison couldn’t produce a driver’s licence, but gave Bertoncello his name and address. Running them through a computer, the officer discovered Harrison’s licence was suspended, and arrested him.
Bertoncello then began a vehicle search, though he had no legal grounds for doing so. He claimed he was looking for Harrison’s licence, but the court was told he didn’t bother looking through clothes on the back seat. He went directly for two boxes at the back, asking the men if there were any drugs inside, again without grounds for doing so.
Alan Young, a professor at Osgoode Hall Law School, said by assessing police conduct to see if Charter violations stem from any systemic failings, the court has now “set the bar so high” that exclusion of tainted evidence “will be a rarity.”
Glad to see we aren’t the only country moving towards a police state.
I think the exclusionary rule can be very hard on the victims of a crime who watch a guilty perp walk, but its one of the few tools that can actually motivate police departments to act within the law.
BUT–even in the GOUSA–the concept of “questioning” has been given too wide a mark. If a guy walks into a police station and confesses without being advised of his Miranda rights, its touch and go said confession is admissable.
Silly how far an otherwise good idea can be taken in the wrong direction.
This has always been the law in Canada and it makes sense.
If the cops break the law to obtain evidence, you prosecute the damned cops, you don’t pretend the evidence doesn’t exist and let a guilty party walk free.
Who the hell are you punishing if you let a guilty person walk free, the cops?
The “integrity” probable cause line is sadly hilarious. The argument boils down to the public perception of Ontario mounties have a very low-down public morale. So low that flashing lights could bring out a militia. Should of used the “wellfare” check as an excuse.
#3–Yes, the exclusionary rule punishes the cops and brings pressure on police departments to train their men better. The Miranda case does discuss (read it too long ago, might be wrong) punishing the cops and thought the exclusionary rule was more effective at stopping the behavior. Too many cops would risk the punishment in order to secure the conviction I think is the main reasoning.
You might disagree, but there is logic behind the exclusionary rule.
#5 bobbo
I understand the logic but it is logic only a scumbag lawyer could propose or implement.
No person with an ounce of common sense could possibly say, “Hey, if the cops screw up, let’s punish the victim and the victim’s family!”.
Think.
Uh oh. I live in Ontario. I guess I’d better start cleaning out the minivan.
#6–Cinaedh–now think is what I think I did with my post. YOU are caught up in a short term appreciation of the single victim before you, the courts and myself are trying to devise the best way to avoid all the future victims.
As stated, you can disagree, but there is logic and common sense and compassion to recognize that cops would be motivated to violate rules if they could still get the conviction. Not so if they still get in trouble, embarrased, fired, sued AND the perp goes free. THAT is how you protect future victims from having cases thrown out and how you protect innocent people from police abuses. This of course loops back to the whole “freedom” issues, but why make it more complicated?
It might be nice to try the punish the police only in a test state and see what the results might be? While I dislike law violating cops, I don’t know that prosecuting them for infractions is really the way to retain the best?
How to craft the fairest most effective law enforcement service is a guess at best. At least we can see the logic of this choice made and it even makes sense? Can’t say that much for too many other issues.
Yeah, lets just get rid of due process. It only protects criminals. You have nothing to fear. Right????? Do I really have to explain why due process is a good idea? Jebus.
Bobbo,
I just wish there was a better alternative than “punishing the truth”.
#9 Improbus
I guess when you write the words “due process”, you do it with the conviction all the peoples of the world have the same system of justice as the U.S.? There are many different kinds of ‘due process’. Look at Islam.
The U.S. justice system ‘might’ be the best system in the world but it certainly isn’t perfect and this business of making perfectly good, damning evidence disappear in a puff of smoke because some cop was careless or crooked is just… stupid.
It still exists and it’s still evidence. Surely intelligent people can deal with the situation.
Try using that ‘due process’ on the cops who screw up and you won’t even need something as patently stupid and unjust as the evidence rules.
#8 bobbo
If there are future victims, as you say, you prosecute the cops again and again and again.
I hesitate to point this out but I guess I have no choice: right at this very minute there are hundreds if not thousands of cops ‘bypassing’ the evidence rules.
It’s just if they get caught, the guilty get to go free.
#10–Steve==yea, me too. The problem is that for all issues I can think of, there are abuses. Not only must you think about what is right and wrong at first look, you need to factor in the likelihood of what kind of abuses take place and add that into the mix as well.
We could say that “proof beyond a reasonable doubt” also does violence to the victims? That gets balanced against the abuses to the persons charged.
The search for perfection will continue.
#11–Cinaedh==you make my arguement. If the cops are playing games now, what kind of games will they play if they become even more adversarial?
Herman Melville’s “Billy Budd” is a good read on the requirement for justice to be thwarted in order for the Kingdom to survive.
In Soviet Russia, you search Police.
I keep looking for images that actually match these stories. Someday I will find one. In this case the public is actually being protected finally. The public is not becoming a “police state” as is so commonly referred to in comparing the extremes of policing that some countries have that give people no rights. Evidence has been thrown out of court so many times when they find it right there because of protecting the criminal’s rights. These cops have egos. They are not about to search your grandma’s Studebaker for fun and find out she’s only got Playboy under the seat. They are after the real crooks. Hooray for the courts. Maybe now they will start getting a handle on these crimes. It could be your child or nephew or friend of a friend that happens to not have access to those many kilos because of this decision, thus making life better for all concerned.
#15 “In this case the public is actually being protected finally.”
From what? Inanimate objects?
“It could be your child or nephew or friend of a friend that happens to not have access to those many kilos because of this decision, thus making life better for all concerned.”
How so? I’d bet that stuff is worth a lot of money! There was no real crime committed here, just breaking a silly law. Without that silly law, that coke would be worth a whole lot less….but I digress.
But I’m with Bobbo here. Keep the exclusionary rule AND go after the cops when appropriate. The problem with only going after the cops is…who goes after the cops? More cops! Far better to have the specter and frustration of wasted efforts over their heads.
#8 – the courts and myself
When did you join the Blue Ribbon Panel?
#17–OFTLO==ok, “the courts and all of us are trying to devise–”
Whats the name of that psychiatric condition where the person focuses on minutia at the edge rather than the whole picture?
#18 – Whats the name of that psychiatric condition where the person focuses on minutia at the edge rather than the whole picture?
Boredom.
#19–touche. I was thinking “nit-picking” but google reminded me it was “confabulation” as opposed to interpretive. But I think boredom catches it better.
The Charter of Rights and Freedoms were written for a reason. When you let Cops go on fishing expeditions, we all lose. These judges have disrespected every soldier that has given his life to get these rights and freedoms.
A truly Sad day for the good people of Ontario Canada.
It’s almost W like with the wire taps.
And then you have Canadian judges who assume we’re all idiots:
Smell of pot smoke no longer grounds for search, arrest
“The smell alone can’t constitute the grounds, because the smell of burnt marijuana — as opposed to raw marijuana — gives an inference that the material is gone, it’s dissipated into the atmosphere. So how can you say you’re in possession of something that doesn’t exist?” said Ronald Piche, Mr. Janvier’s lawyer.”
National Post (Canada) http://tinyurl.com/ypgnj7
‘Course there could never be the inference that the joint is only partially smoked. Or THC illegally exists in the blood.
Let the cops do what they want. If they are wrong then compensate the victim & punish the cops. Compensation and punishment is a no-questions-asked staple of the legal system. In fact, unless the cops are judged to be reckless, I wouldn’t even punish them at all.
Innocent accident victims are legally made “whole” all the time. Not to mention good riddance to bad trash.
RBG
And so it goes..HUH ?!? I suppose with technology going the way it appears to be going (for me..certainly no one else ?) it’s going to be acceptable for cops to knock you down and take your DNA because they saw smoke…just to mix it up in here a bit..(go bobbo – go – )
Damm..almost forgot to mention the chick here..the only reason I know for unlawful search and seizure..as many times as I can before I get caught..
#22–RBG==a new idea-thanks. Yes, I think you propose an interesting system==COMPENSATE the victims, punish the cops. Let the cops develop their extrasensory powers.
Course, in the Calvinist GOUSA, victims are victims because they have displeased gawd, so I don’t know how much compensation should actually be given to them for either being in the wrong place at the wrong time, or otherwise bringing these things onto themselves.
Nicely highlights an important issue though in that social programs really do form a fabric and when pulling a thread here, other patches must be made there.
#23–DeLaMa==if you ever find me posting in agreement with physical force, please point it out. I’ll correct or explain it more fully immediately. And yes, even without the heels, the legs on that babe are the longest I’ve ever seen. Superbabe!
Whoever said common sense isn’t so common must have learned that lesson, hanging around here.
When you allow a criminal to walk away from court laughing at you, the citizen, do you return his 35 kilos of cocaine, so he can pass it on to your kids and your grandkids or do you keep it and force him to make another long trip?
When you teach the student with a handgun in his backpack it’s OK to carry that handgun to school, unless a cop searches legally – which of course they aren’t allowed to do, legally – do you give it back so he can start blasting your kids and grandkids the next day or do force him to purchase or steal a better gun?
There’s just way too many lawyers in this old world.
Taurus Excreta Cerebrum Vincit
To keep the justice system and law enforcement off of the slippery slope to totally arbitrary enforcement, with zero regard for citizens’ rights, cases like this are brought.
Whether you think it doesn’t matter that the contraband makes it’s way to the streets or that it’s the most dangerous stuff imaginable, makes no never mind.
Each individual case is ONE INSTANCE. The law is to apply to ALL INSTANCES. There cannot be fair, just law enforcement if individual enforcers are permitted discretion that our laws don’t allow.
The possession of the contraband is a single case, in isolation. The principle of not violating citizens’ rights is a fundamental underpinning of the society. That makes it an incalculably more serious matter than one guilty defendant getting off. Letting the single defendant off does not invalidate the law, but letting the cops disregard the law grants them carte blanche to continue to violate citizens’ rights.
THEY WILL NOT LIMIT THEMSELVES TO ONLY VIOLATING THE RIGHTS OF DEMONSTRABLY GUILTY PEOPLE – THEY WILL THEN DO IT TO ANYONE THEY CHOOSE, INCLUDING FACTUALLY INNOCENT CITIZENS. HISTORY HAS PROVEN THIS, OVER AND OVER.
Upholding and enforcing the principle, overall, has far more importance to a civil society than an individual guilty party slipping out of it’s grasp.
Only if the authorities know, for a fact and without a doubt, that their investigations and prosecutions – even the most righteous ones, ESPECIALLY the most righteous ones – will FAIL if they violate citizens’ rights, will they follow the letter of the law in dealing with guilty parties AND INNOCENT ONES.
Letting THEM get away with it sends a far worse, more dangerous and destructive message than letting any individual miscreant off on a technicality. One bad guy getting away with one instance of personally breaking a law, versus the powers of armed government being granted permanent permission to violate the protections given to the populace against exactly such arbitrary police-state tactics. The first is at most a threat to the people around him; the second is a major loss of freedom and protection from government intrusion into private lives for the ENTIRE COUNTRY.
#28–3HC==Bravo–you have set forth the issue in poetic/emotional/dramatic ways that I fall short in doing. Nicely done.
#27–Cinaedh==I don’t get the point of what your saying. To subtle, or disconnected, or just not the same wavelength. Given the answers are pretty obvious and no one would disagree, whats the point?
Should drugs be returned to the criminal?–No.
Are kiddies taught its ok to take guns to school?–No.
Are cops allowed to search kiddies legally?–Yes.
Must be a form of humor I’m not acquainted with. Spell it out again in simple declarative statements?
#29 – bobbo
It’s NOT common sense – or even particularly sane – to ‘pretend’ evidence doesn’t exist when it does, in fact, exist.
Simple enough?
#27 & #28 – 3HC
You have no faith whatsoever in your own law enforcement establishment or your own legal system, so you dispense with justice to ensure your own safety.
Sure, that makes perfect sense to me.
#30–Cinaedh==no one (except maybe you?) is pretending the evidence doesn’t exist. It exists, and its not admissable. Now, as to sanity, men of good intent and wide experience look at what will give us the “net/net most effective and fair system to as many as possible including victims, future victims, criminals, defendants, police officers, general citizenry and so forth. Ok, you disagree but to call the current system “insane” is a bit self centered don’t you think?
For myself, I don’t like it but when I think through it, I can see the rationale and I can’t say the system is insane to protect our constitutional freedoms the way the exclusionary rule does.
Stop letting false analysis and imagery cloud your mind, and maybe this will become clear to you as well?
Likewise with your comments to our fine anti-Marxists friend, the 3HC==I don’t understand your position there at all. You want us to “have faith” in our law enforcement establishment? Faith as Ben Franklin might say is not eternal vigilance and will of its own negligence and sloth cause our liberties to sluff away. Shame on you!!!!!!!!