Growing chasm between civil libertarians and interests of law enforcement agencies
When Ontario Provincial Police Constable Brian Bertoncello spotted a rented SUV being driven sedately along a Northern Ontario highway at precisely the speed limit on Oct. 24, 2004, it immediately set off his internal radar.
Switching on his flashing lights, Constable Bertoncello brought the vehicle to a stop. "It's very rare that you get somebody driving directly on the speed limit," he explained later.
The officer's suspicions grew as he questioned the nervous-looking occupants of the vehicle, Bradley Harrison and Sean Friesen, who had driven non-stop from Vancouver.
Constable Bertoncello proceeded to rip open two boxes in a storage compartment at the back of the SUV - uncovering 35 kilograms of cocaine with a street value of between $2.4-million and $4.6-million, and launching a major Charter of Rights case that will reach the Supreme Court of Canada today.
Police and criminal lawyers are watching the case intently, as the court will decide whether the immensity of the drug seizure justified it being admitted as evidence at Mr. Harrison's trial - notwithstanding the damage to his privacy rights.
"Rights are not free," lawyers Frank Addario and Jonathan Dawe argue in a brief to the court on behalf of the Canadian Civil Liberties Association.
"The police would catch more criminals if they did not have to obey the law and respect the Charter.
"It is one of the inevitable consequences of entrenching rights in the Constitution and taking them seriously that some criminals will escape justice who might otherwise be caught and punished," they said.
All parties are agreed on one point: Constable Bertoncello's impetuous conduct was irresponsible. At Mr. Harrison's trial, Mr. Justice Norman Karam of the Ontario Superior Court described the stop as "somewhat incredible ... brazen and flagrant.
"I am satisfied that his explanations for stopping the vehicle and detaining the two accused are contrived and defy credibility. I'm satisfied that the breaches were extremely serious," he said.
But that is as far as Judge Karam was willing to go. He refused to exclude the evidence, concluding that the breach of Mr. Harrison's rights "paled" in comparison to his criminal conduct.
In a legal brief on behalf of Mr. Harrison, defence counsel Marie Henein implored the court not to gut a key section of the Charter of Rights. She warned that it is fast reaching a point where evidence is not excluded unless it involves an innocuous amount of marijuana, or the defendant has been physically beaten by the police.
Listing 15 recent cases where lower-court judges permitted the use of tainted evidence, Ms. Henein pronounced it "an alarming pattern."
However, federal prosecutors James Martin and Rick Visca maintain that the public is scandalized whenever an erring police officer is "punished" by having a major drug seizure excluded from evidence.
They said the embarrassment of being admonished by a judge amounts to sanction enough for a police officer.
"Any suggestion that the protections afforded by the Charter are somehow eviscerated in such instances is pure hyperbole," they added.
The growing chasm between civil libertarians and those sympathetic to the interests of law enforcement was evident in a 2-1 split when the Ontario Court of Appeal heard the Harrison case this year.
Associate Chief Justice Dennis O'Connor and Mr. Justice James MacPherson ruled that the Charter breaches had been minimal compared with the horrors of large-scale drug trafficking. Writing in dissent, Madam Justice Eleanore Cronk decried the growing erosion of liberties that takes place when police are permitted to flout the laws governing detention and seizure.
Source: Globe and Mail (Canada)
By Kirk Makin
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