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National Post - Toronto,Ontari
15 May 2008

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Excluding evidence doesn't mak

What should the courts do when police officers violate a suspect's rights under the Charter of Rights and Freedoms -- keep the resulting evidence out of court and risk letting a criminal walk free? Or admit the evidence and risk signalling to police that it's perfectly OK to trample suspects' rights in future?

The Charter itself says such evidence must be excluded if admitting it "would bring the administration of justice into disrepute."

This seems to me like a reasonable rule, and in many cases its outcome would be obvious. A confession obtained by torture, for instance, would almost never be admitted -- first, because such confessions are notoriously unreliable, and second, because brutality transforms law enforcement agents into criminals themselves. Both factors would undermine public confidence in the justice system.

But a mindset seems to have developed among many criminal defence lawyers that Canada should follow in the footsteps of the United States, where for decades all civil rights infringements, no matter how slight, have resulted in the exclusion of tainted evidence, no matter how reliable or persuasive. Canada has already been heading in that direction.

That's why so many lawyers are nervous about the appeal heard by the Supreme Court of Canada on April 24. One even described the case as "scary stuff" that could "turn back the clock to the bad old days before we had any real rights." The 18-year-old accused, Donnohue Grant, had been confronted by three police officers on a Toronto street in daylight and asked whether "he had anything on him that he shouldn't." He admitted first having some marijuana, then a gun. Police arrested and searched him, seizing the drugs and a loaded revolver. At trial, he was sentenced to 18 months' imprisonment.

The Ontario Court of Appeal held that police had indeed infringed Grant's right not to be arbitrarily detained -- but not sufficiently to defame

the justice system. The gun had been properly admitted into evidence, and the conviction stood. Grant appealed again. Now the Supreme Court will decide.

I'm as mistrustful of excessive police power as the next person -- probably more so --but the necessity of throwing out evidence in every case of police misconduct escapes me. I see no inexorable link. Law enforcement is not some game where the hunted have to be given a sporting chance.

Apparently, the theory is that punishing police officers by throwing their work away will make them mend their

ways. But how punitive is that for the errant cop? He still gets his paycheque. There are better ways of punishing police misconduct -- ways that are far more likely to get a rogue officer's personal attention. Victims of police misconduct can and occasionally do charge the officers with criminal offences, or sue them personally in civil actions, along with the police forces that employ them.

I'll bet that fear of demotion, dismissal, imprisonment or civil liability have prevented much more police misconduct than fear of seeing their work thrown away.

The real punishment inflicted by a strict exclusionary rule falls upon the innocent members of society -- the future victims of genuine criminals who escape conviction and are out on the streets to transgress again.

Suppose, for instance, that police officers investigating a recent murder enter some-one's home without a warrant. They find a suspect wearing a bloody shirt, and cash belonging to the victim stashed under the suspect's mattress. When the courts toss out such evidence -- as the Supreme Court did in the 1997 case R. vs. Feeney-- the public feared, justifiably, that a murderer might go scot-free. There was widespread concern.

How common is this? According to former U. S. attorney-general Edwin Meese, the strict U. S. rule means that "150,000 criminal cases, including 30,000 cases of violence, are dropped or dismissed every year because the exclusionary rule excluded valid, probative evidence."

Comparisons over time cast doubt on the theory that the exclusionary rule makes officers significantly more rights-respecting. Pre-Charter Canada was not, at least in my recollection, any more of a rampant police state than it is today. And the U. S. statistics demonstrate that despite the strict rule, cops apparently keep infringing suspects' rights in significant numbers.

Canadian courts should resist the pressure to adopt the strict rule that applies in the U. S.

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Article sourced from

National Post - Toronto,Ontari15 May 2008

Excluding evidence doesn't mak

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National Post - Toronto,Ontari
15 May 2008