The Supreme Court of Canada has ruled that, under certain conditions, evidence can be used in court even if that evidence was obtained unconstitutionally by police officers.
Photograph by: Geoff Robins, Geoff Robins
OTTAWA — The Supreme Court of Canada, ruling Friday in a quartet of separate but thematically related cases, acquitted a man of drug trafficking charges though he was caught with 35 kilograms of cocaine but upheld a conviction against a man for carrying a concealed, loaded revolver.
In all four cases, defence lawyers had claimed that police obtained key evidence illegally, in violation of protections spelled out in the Charter of Rights and Freedoms.
The Court's rulings Friday 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 need that justice be served.
In the judgments, the Court seemed to suggest that judges in the future 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 the drug trafficker after agreeing with a lower court finding that the arresting officer in the case displayed "brazen and flagrant" disregard for the accused person'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 had been widely anticipated in the legal community. A judge who lets the drug trafficker go free "on a technicality" related to a Charter rights 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 posted speed limit, after all — 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.
"This was far from a technical or trivial breach (of Charter rights)," McLachlin wrote in the 6-1 judgment.
"There is a strong direction for trial judges to not reward deliberate breaches of the Charter," Addario said. "From a civil liberties perspective it sends the right message. The charter is not an optional honour code that can be ignored if it constrains the police. That's one of its signal purposes."
But in the firearms case, involving an accused named Donnohue Grant, the Supreme Court concluded that the administration of justice would have been brought into disrepute if they had not overlooked an error by police.
On Nov. 17, 2003, Grant, then 18, was walking along a sidewalk in Toronto's east end in the middle of the day. Two plainclothes police officers drove by and noticed that he was "fidgeting" with his pants and coats as they drove by and that Grant "stared" at them in an an unusual way.
The two officers had been on patrol in a school area that had experienced a high number of student assaults, robberies and drug offences. They decided to "have a chat" with Grant and radioed to a nearby uniformed officer to talk to him. Though the uniformed officer did not physically restrain Grant, the officer blocked Grant's path on the sidewalk and, at one point, asked Grant to keep his hands in front of him.
The uniformed officer asked Grant where he was going, what he was doing and whether he had ever been arrested. After a few minutes, an officer asked Grant if he "had anything on him that he shouldn't." Grant initially said he did not but then conceded he was carrying "a small bag of weed". An officer replied, "Is that it?"According to court testimony, Grant hung his head and said, "Well, no." After another question, Grant conceded he was also carrying a concealed firearm.
At that point the three officers arrested him, searched him, and found the marijuana and a loaded revolver. Grant was subsequently convicted of several weapons offences and was sentence to 18 months in jail.
The Supreme Court found police erred in detaining Grant but noted that their conduct was "not abusive" and it was "neither deliberate nor egregious." The court balanced that against the seriousness of the crime — carrying a concealed, loaded revolver — and found that, despite the police misconduct, "admitting the evidence would not greatly undermine public confidence in the rule of law."
In the third case, the court held that a demand by a police officer to provide a roadside breath sample is acceptable when an officer has "reasonable" grounds to believe the suspect is drunk. In the case at hand, police saw the accused driving erratically and over the speed limit. When pulled over, the police officer smelled alcohol and noticed the accused had red eyes, slurred speech and slow movements. After making those kinds of observations, a demand to provide a breath sample is reasonable, the court held, and does not violate Constitutional protections against self-incrimination.
Finally, in the fourth case, an attempt by a man convicted of fraud to show that he was "arbitrarily detained" in violation of his Charter rights when a police officer simply said, "Wait a minute, I want to talk to you," as he was walking by the officer was dismissed by the court. The man's conviction was upheld.