Broken Justice - these infuriating cases have it all

[charter.rights]

Read again, charter, Brian did not say lying. He used the example that the cops simply took a chance with the evidence they had asked for a warrant and the judge went for it. It's a hypothetical.

Fudgin evidence to obtain a warrant that would not otherwise be granted is the same thing as lying.

[sharkman]

Fudgin evidence to obtain a warrant that would not otherwise be granted is the same thing as lying.

Read the post again to which your comment is directed. Please note there is no fudging, lying or threats by the police in this hypothetical, only a judgement call by the judge. Or are you unable to view without bias?

[charter.rights]

It was judges who narrowed the rules of evidence, judges who decided the guilty should go free to punish the cops - thereby punishing society. And it is judges who routinely hand out inappropriately short sentences. I've said it before and never been contradicted - where there is a scale of punishment, say from 1 to 10 years available to a judge, 90% of all sentences will fall below the median, and most will be in the lower quarter of the available range. Judges rarely, rarely, rarely hand out sentences which even begin to approach the maximum available. No matter what the crime, no matter how vicious, no matter how long the criminal record of the defendant.

Punishment cannot be meted if there is no conviction. A judge cannot convict if the evidence does not point to the defendant beyond a reasonable doubt. When cops lie and fudge the evidence there is a reasonable doubt that the evidence is tainted. Thus a conviction isn't possible. However, if the evidence had been collected and handled in the proper way it is more likely a conviction would be issued.

Maximum sentences are reserved for the most extreme cases. A guy going down a hill and exceeds the speed limit is much different than to hot wheelers racing down the street and killing an innocent child. Most cases call for minimums or median sentences - that is why they are handed out. Unfortunately, you would know that when you only get your information from the Toronto Sun and the National Enquirer.

[Bryan]

Maximum sentences are reserved for the most extreme cases. A guy going down a hill and exceeds the speed limit is much different than to hot wheelers racing down the street and killing an innocent child. Most cases call for minimums or median sentences - that is why they are handed out.

And this is a serious problem. Punishments are all over the map, and far too often too lenient. We need to reform the laws to provide much stiffer mandatory sentences, and to enforce truth in sentencing.

What we need to see are reforms closer to these than what we have now:

If you murder someone, you don't get out of prison, EVER.

If you commit a violent crime, or an offence dangerous to the public, you got to prison for 20 years, and you serve ALL OF IT. No double time for waiting for trial, no house arrest, no conditional sentences, no time off for good behaviour, just prison.

If you are an immigrant and you commit a crime, you get deported. No hearing, no appeal, you're gone.

[Argus]

Punishment cannot be meted if there is no conviction. A judge cannot convict if the evidence does not point to the defendant beyond a reasonable doubt. When cops lie and fudge the evidence there is a reasonable doubt that the evidence is tainted. Thus a conviction isn't possible.

Under the present rules. But as I said, in most of these cases where the judges dismiss the evidence there is no doubt in anyone's mind, including the judge, that they are guilty. Therefore, justice would call for them to be punished.

Maximum sentences are reserved for the most extreme cases.

Maximum sentences are rarely even considered in the most extreme cases. Nor are punishments even halfway along the scale considered, regardless of the severity of the crime or the record of the defendant. Judges do not like handing out severe sentences because their primary concern is the welfare of the criminal and his chances of rehabilitation, not punishing him or protecting society.

Edited June 13, 2008 by Argus

[FTA Lawyer]

Fine, lets assume the example given was hypothetical. An exercise in a textbook perhaps:

Police know who the perp is, but their hard proof is sketchy. They know the guy has the evidence in the house right now, and are afraid he'll dispose of it before they get a chance to gather concrete enough evidence. So, they decide to take a chance with a judge and see if they can get a warrant anyway, even though they know they probably don't have enough.

Dumb luck, they get the warrant anyway. In the process of carrying out the warrant, they find exactly what it was they said they were looking for.

If it is determined that the warrant itself should not have been granted given the evidence used for it, then we most certainly have a case to discipline both the police AND the judge for that. Make it severe enough that they'll be more carefull next time.

However, the evidence that was collected still matches what they were searching for. Shady tactics aside, the ends still justified the means, and the fact that they found what they were looking for is the proof of that.

You say the method of collection alone should exclude the evidence and exonerate the accused. That makes people angry, because no matter how it was collected, it still exists. This bullshit about pretending the evidence doesn't exist is simply not acceptable to a lot of people. Evidence collected, and method of collection are two separate issues, and should be treated as such.

Wow...

#1. How can any person "know" a fact when the "hard proof is sketchy"? That's called an internally inconsistent argument, and it's the premise of your entire attempted point.

#2. If the police will try to get a warrant "even though they know they probably don't have enough" then what punishment do you imagine would make them not take the exact same chance the next time?

#3. Do you know what it really means for police to "not have enough" for a warrant? They only need reasonable and probable grounds to believe...not concrete proof. So, my point is that it's way worse than people here make it out to be when the police invade people's homes but don't "have enough".

#4. "Shady tactics" being acceptable because the "ends justify the means" is the recipe for disaster. The one thing you are missing here is who is deciding which ends can serve to justify which means? See, the system we have, imperfect as it may be, sets the parameters (put aside for a moment that there may be legitimate arguments to support shifting the parameters through democratic action).

You are advocating that ignoring the parameters is okay, but you presuppose that ignoring the parameters will only be done toward the end of inherent good. As soon as the rules are not really rules anymore, then each police officer is free to determine which means he or she will use and to what end.

Do you really think that this would lead to a safer society?

#5. Consider this scenario...

I'm a cop...not a bad cop, but a good cop who is just always doing his best to keep people safe. I "know" that you are making meth in your garage, but my "hard proof is sketchy". I had a neice die from meth so it's a particularly troubling offence to me. I know you are cooking some up right now, and I'm afraid that you'll have moved it out for sale before I can get the concrete evidence. So I employ a very basic "shady tactic" by finding a random nearby neighbour and ask them leading questions such that they agree that they have seen you quite a bit in your garage lately, and you have been behaving similar to how a meth manufacturer would behave.

In my warrant application, I simply note the neighbour as a confidential informant and I make sure to remind the judge of my neice who died when I am asserting the urgency of my application. No real lying...just "shady tactics". I get my warrant. Meth labs are really dangerous and manufacturers like you are usually armed and ready to shoot, so we get the SWAT team for a fully masked dynamic entry (no knock warrant). We barge in guns at the ready and unlucky for you, you are playing the latest shooting simulation X-Box game. You turn to see what's the commotion and my training kicks in and I double-tap you two shots centre mass. You die.

I know damn well that we should not have been in your house, because I used shady tactics to get a warrant when I knew I "probably didn't have enough." Worst case scenario...I was wrong...you were buying all the chemicals one needs to make meth, but were using them for their normal household purposes. My instinct failed me.

It is because a scenario like the above is completely plausible that we have laws about search warrants and expect police to follow them. The "ends justify the means" policy only works if the ends are always pure, the means reasonable and the officer never makes a mistake.

I accept that letting a possibly guilty person go by excluding illegally obtained evidence is an important part of a justice system that seeks to prevent innocent people from being harmed. It's not "pretending the evidence doesn't exist" its choosing to disallow its use as a policy to maintain order.

None of this means that you can't argue that the system should exclude evidence less often or in only the most eggregious cases of police misconduct, but until those standards are democratically implemented as law, then in my view all citizens, including the police, should follow the laws as they exist.

FTA

[FTA Lawyer]

Defense attorneys most assuredly do not care if there is justice. In fact, they're not supposed to want justice. They're supposed to work for injustice - presuming their client is guilty.

...

A cop who violates some technical aspect of law to get a guilty person punished - and remember, these cases do not involve innocents framed by evil cops but unquestionably guilty offenders - is wrong, but not nearly so as a person who rapes women and children, robs banks, beats people and commits murder. You know, the people you work for.

I must have missed the day they taught law in law school (to quote from A Few Good Men) becuase none of my professors were as brilliant as you to explain to me that I am supposed to presume my clients are guilty and then set about working for injustice. WTF?

Now, wipe the foam from your mouth for long enough to really consider how you answer this one...how does the cop know that he is just "getting a guilty person punished" when he decides to violate the law to do it? See, if he knows the person is guilty (as opposed to suspects it) then even you will have to agree he has proof. And if he has proof of guilt, why does he need to violate the law? Just go lawfully arrest the criminal.

Nobody here is defending inappropriate actions taken against the innocent. What we are decrying is inappropriate actions taken on behalf of the guilty. What you fail to understand is that the basic flaws of the system lead to both. For every "innocent" you are proud to have gotten off there are no doubt three or four convicted

What you fail to understand is that police are human and therefore not infallible. If we allow them to operate outside of the protections afforded by the law, then in their well-intentioned pursuit of bad guys, cutting procedural safeguards at every corner, they will unwittingly commit inappropriate infractions against the innocent.

I have no doubt that the officer who arrested David Milgaard "knew" that he raped that nurse. I have no problem accepting that the cop who got Steven Truscott "knew" that little bastard killed that innocent girl. And I rather suspect that neither was an evil cop out to convict someone who didn't do it...but that's what happened.

And you're not really going to stick with the proposition that innocent people get convicted as opposed to acquitted at a rate of 3 or 4 to 1 are you?

FTA

[Bryan]

Do you know what it really means for police to "not have enough" for a warrant? They only need reasonable and probable grounds to believe...not concrete proof. So, my point is that it's way worse than people here make it out to be when the police invade people's homes but don't "have enough".

If the evidence of the crime is found, they obviously DID have probable grounds, regardless of what a judge might rule. The existence of the evidence is the justification after the fact.

Again, the remedy for making sure serious mistakes like the example you gave is to make the police and the judges culpable if the warrant was obtained through the use of deliberate deception. Send them to prison if you have to. Throwing out the poorly obtained evidence is not making a previous wrong right, it's covering it up with an even more egregious wrong.

[FTA Lawyer]

Here is how you earlier defended the judge in my example, instead of just pointing out I had no link:

You cited bad police who "abuse the system by misleading" the poor hoodwinked judge.

Yes, I know you occasionally have comments like these. But think like a lawyer for a moment. The vast weight of the evidence, namely your comments, are siding with the justice system and abusive towards cops. Anyone can look over your comments and see this.

For some reason you seem to hate cops and love judges. Personally, I rate each individual by their actions and decisions. Since we have a lot of bad decisions in BC on top of having laws that coddle offenders, I rate the justice system poorly when it produces bone head judgements.

In the interests of other interested posters, here is the case I was referring to. It is disheartening to see hardened criminals have all of their crimes rewarded with this kind of justice.

In effect he was saying the previous judge who granted the warrant was wrong by granting it.

My citing bad police abusing the system was only meant as a hypothetical to show how a judge throwing out a warrant after another judge issued it can make perfect sense. Without details of the case you relied upon, it would be impossible to say if the judge made a terrible decision or a great one.

Yes, the vast weight of my comments are siding with the justice system and critical (not abusive) of the cops because this is a discussion forum and I think the experience is better as a debate instead of 100% like minded people telling each other how right they are. It's lonely over here on my side, but I suggest that this thread is better with two sides is it not?

Do I have some bias? Of course I do, I'm a criminal defence lawyer and a large part of what I do is challenge the propriety of police conduct. But that doesn't mean for a moment that I attack every cop I encounter.

In fact, in the last appeal case I did, I argued that the judge may have been biased in convicting an accused. In summarizing the evidence of the police officers to the appeal court, I described each one of them as presenting as honest, forthright and fair in their description of events. I give credit where it is due. (And unfortunately, I can't give you a link becuase the court has reserved judgment...maybe in a month or two...)

And let us all please remember, I don't have to personally love a judge to defend what they did, nor hate a cop to criticize them. We should be able to maintain that distinction.

FTA

[Wild Bill]

And let us all please remember, I don't have to personally love a judge to defend what they did, nor hate a cop to criticize them. We should be able to maintain that distinction.

FTA

While we're talking about distinctions...I was hoping you or someone else would directly address my question.

All of your responses revolve around a cop deliberately tainting evidence or procedure. What about a cop making an honest mistake? It seems the law at present treats both situations in the same manner.

All that aside, I still haven't seen a clear answer as to why society should be punished for a police infraction. I can understand punishing bad cops. I can understand punishing criminals. I still can't see why our system decides that excluding evidence to let charges be dropped is a fair punishment TO THE COPS! I thought the protection of society would be paramount. Cops could still face reprimands or even charges. If a cop deliberately tainted evidence then throw the cop in jail! To exclude the evidence seems to be punishing society!

All your examples were of cops planting evidence. You made no mention of evidence discovered by chance. A random stop of a vehicle without sufficient cause that turns up blood or a severed head, perhaps. Insufficient cause? Then let Jason of Friday XIII drive on his merry way! BAD COP!

What is the point? To embarrass the cops? "If you taint evidence then we will punish innocent bystanders! That will fix you!"

Shades of Fearless Fosdick.

Philosophically, it seems to be a refutation of Aristotle. A is NOT A! Evidence is not part of the truth.

I agree that a citizen should have his rights protected but part of doing that is protecting society in general. In practical terms a balance obviously must be struck. With the present system it just doesn't seem clear that society and by extension innocent individuals are being protected. Punishing the cops not just for intentional infractions but for simple errors by allowing continued potential peril from a dangerous perp is VERY hard for a layman to understand!

Perhaps you could clarify things from these perspectives...

[Argus]

I must have missed the day they taught law in law school (to quote from A Few Good Men) becuase none of my professors were as brilliant as you to explain to me that I am supposed to presume my clients are guilty and then set about working for injustice. WTF?

I did not suggest that lawyers are supposed to presume their clients are guilty. I said that whether their clients are guilty or not has no relevance on whether or not a lawyer is supposed to get them off without punishment. Bernardo's lawyer even hid videos of him raping teenage girls, for Gods sakes. And if Bernardo's present lawyers suddenly discovered a technical violation of his rights which would get him released then they're required by their own code of "ethics" to use it to get him out. That's what I mean about justice not being of any interest to defense lawyers.

Now, wipe the foam from your mouth for long enough to really consider how you answer this one...how does the cop know that he is just "getting a guilty person punished" when he decides to violate the law to do it?

Well let's see now. If he lies to get a warrant and then finds the home filled with cocaine and machine guns, I'm betting he's on safe grounds in knowing he's getting a guilty person punished.

[sharkman]

All of your responses revolve around a cop deliberately tainting evidence or procedure. What about a cop making an honest mistake? It seems the law at present treats both situations in the same manner.

All that aside, I still haven't seen a clear answer as to why society should be punished for a police infraction. I can understand punishing bad cops. I can understand punishing criminals. I still can't see why our system decides that excluding evidence to let charges be dropped is a fair punishment TO THE COPS! I thought the protection of society would be paramount. Cops could still face reprimands or even charges. If a cop deliberately tainted evidence then throw the cop in jail! To exclude the evidence seems to be punishing society!

All your examples were of cops planting evidence. You made no mention of evidence discovered by chance. A random stop of a vehicle without sufficient cause that turns up blood or a severed head, perhaps. Insufficient cause? Then let Jason of Friday XIII drive on his merry way! BAD COP!

What is the point? To embarrass the cops? "If you taint evidence then we will punish innocent bystanders! That will fix you!"

Very good point. If the cop makes an honest mistake in gathering evidence at the scene, the criminal goes free. If the crown lawyer makes a mistake in his efforts and loses, the criminal goes free. If the judge makes a mistake you can get appeals, or in some cases the criminal walks. If anyone in the entire system is shown to have infringed on the criminal's rights, he gets some form of compensation. He also gets 2 for 1 credit for time served while the case grinds through the process, taking 2 to 3 years in some situations. Everybody in the entire system for bringing the criminal to trial has to get it absolutely spot on or the criminal goes free.

[charter.rights]

Very good point. If the cop makes an honest mistake in gathering evidence at the scene, the criminal goes free. If the crown lawyer makes a mistake in his efforts and loses, the criminal goes free. If the judge makes a mistake you can get appeals, or in some cases the criminal walks. If anyone in the entire system is shown to have infringed on the criminal's rights, he gets some form of compensation. He also gets 2 for 1 credit for time served while the case grinds through the process, taking 2 to 3 years in some situations. Everybody in the entire system for bringing the criminal to trial has to get it absolutely spot on or the criminal goes free.

Again, since the defendant must be considered to be innocent any mistake goes in his or her favour. No conviction can be issued if there was a mistake in the collection of evidence.

[sharkman]

But that's where things get silly, charter. Define mistake. I cited a case earlier where a judge threw out major drug and counterfeit money evidence simply because the judge decided that when the cop asked a drug dealer to open his hand, that was unlawful search.

The cop did not demand to see what was in his hand. The cop did not wrestle him to the ground and open his hand. The cop did not produce a folded piece of paper and claim it was a warrant to search his person. The cop simply requested to see what was in the dealer's hand. The dealer could have said no.

This was termed a mistake, however. Although the cop witnessed the dealer selling drugs, he's not allowed to go up to the dealer and ask to see what's in his hand. It is these kind of judgements that punish society, for the drug dealer is allowed to go free and continue passing counterfeit money, ruining lives with drugs and screwing up his own life until he gets killed by another dealer or junkie.

What is the justice system's response? To allow safe injection houses to remain open.

[FTA Lawyer]

While we're talking about distinctions...I was hoping you or someone else would directly address my question.

All of your responses revolve around a cop deliberately tainting evidence or procedure. What about a cop making an honest mistake? It seems the law at present treats both situations in the same manner.

All that aside, I still haven't seen a clear answer as to why society should be punished for a police infraction. I can understand punishing bad cops. I can understand punishing criminals. I still can't see why our system decides that excluding evidence to let charges be dropped is a fair punishment TO THE COPS! I thought the protection of society would be paramount. Cops could still face reprimands or even charges. If a cop deliberately tainted evidence then throw the cop in jail! To exclude the evidence seems to be punishing society!

All your examples were of cops planting evidence. You made no mention of evidence discovered by chance. A random stop of a vehicle without sufficient cause that turns up blood or a severed head, perhaps. Insufficient cause? Then let Jason of Friday XIII drive on his merry way! BAD COP!

What is the point? To embarrass the cops? "If you taint evidence then we will punish innocent bystanders! That will fix you!"

Shades of Fearless Fosdick.

Philosophically, it seems to be a refutation of Aristotle. A is NOT A! Evidence is not part of the truth.

I agree that a citizen should have his rights protected but part of doing that is protecting society in general. In practical terms a balance obviously must be struck. With the present system it just doesn't seem clear that society and by extension innocent individuals are being protected. Punishing the cops not just for intentional infractions but for simple errors by allowing continued potential peril from a dangerous perp is VERY hard for a layman to understand!

Perhaps you could clarify things from these perspectives...

Honest mistakes have always been distinguished from intentional acts of wrongdoing. I don't want to seem rude, but I can't give a summary of the complete works of s. 24 of the Charter on a forum like this. I've tried to explain before, there is a balancing process that gets followed, with the ultimate question to be answered being whether inclusion of the evidence in spite of a Charter breach or exclusion of the evidence would more likely bring disrepute to the administration of justice. Here's the basic test that trial judges are supposed to apply per the SCC in R. v. Collins:

It is whether the admission of the evidence would bring the administration of justice into disrepute that is the applicable test. Misconduct by the police in the investigatory process often has [page281] some effect on the repute of the administration of justice, but s. 24(2) is not a remedy for police misconduct, requiring the exclusion of the evidence if, because of this misconduct, the administration of justice was brought into disrepute. Section 24(2) could well have been drafted in that way, but it was not. Rather, the drafters of the Charter decided to focus on the admission of the evidence in the proceedings, and the purpose of s. 24(2) is to prevent having the administration of justice brought into further disrepute by the admission of the evidence in the proceedings. This further disrepute will result from the admission of evidence that would deprive the accused of a fair hearing, or from judicial condonation of unacceptable conduct by the investigatory and prosecutorial agencies. It will also be necessary to consider any disrepute that may result from the exclusion of the evidence. It would be inconsistent with the purpose of s. 24(2) to exclude evidence if its exclusion would bring the administration of justice into greater disrepute than would its admission. Finally, it must be emphasized that even though the inquiry under s. 24(2) will necessarily focus on the specific prosecution, it is the long-term consequences of regular admission or exclusion of this type of evidence on the repute of the administration of justice which must be considered (see on this point Gibson, supra, p. 245).

32 The concept of disrepute necessarily involves some element of community views, and the determination of disrepute thus requires the judge to refer to what he conceives to be the views of the community at large. This does not mean that evidence of the public's perception of the repute of the administration of justice, which Professor Gibson suggested could be presented in the form of public opinion polls (supra, pp. 236-47), will be determinative of the issue (see Therens, supra, pp. 653-54). The position is different with respect to obscenity, for example, where the court must assess the level of tolerance of the community, whether or not it is reasonable, and may consider public opinion polls (R. v. Prairie Schooner News Ltd. and Powers (1970), 1 C.C.C. (2d) 251 (Man. C.A.), at p. 266, cited in Towne Cinema Theatres [page282] Ltd. v. The Queen, [1985] 1 S.C.R. 494, at p. 513). It would be unwise, in my respectful view, to adopt a similar attitude with respect to the Charter. Members of the public generally become conscious of the importance of protecting the rights and freedoms of accused only when they are in some way brought closer to the system either personally or through the experience of friends or family. Professor Gibson recognized the danger of leaving the exclusion of evidence to uninformed members of the public when he stated at p. 246:

The ultimate determination must be with the courts, because they provide what is often the only effective shelter for individuals and unpopular minorities from the shifting winds of public passion.

The Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority.

33 The approach I adopt may be put figuratively in terms of the reasonable person test proposed by Professor Yves-Marie Morissette in his article "The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms: What to Do and What Not to Do" (1984), 29 McGill L.J. 521, at p. 538. In applying s. 24(2), he suggested that the relevant question is: "Would the admission of the evidence bring the administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case?" The reasonable person is usually the average person in the community, but only when that community's current mood is reasonable.

34 The decision is thus not left to the untramelled discretion of the judge. In practice, as Professor Morissette wrote, the reasonable person test is there to require of judges that they "concentrate on what they do best: finding within themselves, with cautiousness and impartiality, a basis for their own decisions, articulating their reasons carefully and accepting review by a higher court where it occurs." It serves as a reminder to each individual [page283] judge that his discretion is grounded in community values, and, in particular, long term community values. He should not render a decision that would be unacceptable to the community when that community is not being wrought with passion or otherwise under passing stress due to current events. In effect, the judge will have met this test if the judges of the Court of Appeal will decline to interfere with his decision, even though they might have decided the matter differently, using the well-known statement that they are of the view that the decision was not unreasonable.

If you think that all "mistakes" lead to exclusion and acquittal then you have absolutely no idea about our justice system...and sadly, most of the posters in this thread fit that bill. The fact is that most "mistakes" are not "punished" by exclusion...and indeed, even some more blameworthy behaviour by police does not lead to evidence being tossed.

At the end of the day, extraordinary cases are often decided in the best interests of the system as a whole. Here's about the best explanation of this point I have found recently from a SCC case called R. v. Greffe that involved police doing an anal cavity search on mere speculation of drugs, claiming that the search was incidental to a traffic warrant arrest (that's traffic as in bad driving, not trafficking):

I hasten to add that in this case the fact that a rectal examination was conducted as incident to an arrest for traffic warrants and absent any evidence on the record of reasonable and probable grounds for the belief that the appellant was in possession of heroin, makes the unreasonable search an extremely serious violation of the appellant's Charter rights. Indeed, it is the intrusive nature of the rectal search and considerations of human dignity and bodily integrity that demand the high standard of justification before such a search will be reasonable. To paraphrase somewhat my statement in Collins, supra, at p. 288, we cannot accept that police officers subject persons to rectal examinations incident to arrests for traffic warrants when they do not have reasonable and probable grounds to believe that those people are actually in possession of drugs. It is imperative that the Court, having regard for the long-term consequences of admitting evidence obtained in these circumstances, dissociate itself from the conduct of the police in this case which, always on the assumption that they merely had suspicions, was a flagrant and serious violation of the rights of the appellant. Indeed, in this case the absence of proof of reasonable and probable grounds, or even of "objective articulable facts" to support the officer's suspicions, makes the unreasonable search a more serious Charter violation: see Simmons, supra, at p. 535, and Jacoy, supra, at p. 560.

...

I say this in full recognition of the fact that the evidence recovered was real evidence that existed irrespective of the Charter violations, and whose admission therefore would not negatively affect the adjudicative fairness of the appellant's trial. It must be recalled, however, that in addition to the consideration of a fair trial, the Court must also consider whether by admitting the evidence it would be condoning unacceptable conduct by the police. It is in that context that I now turn to a consideration of the third set of factors, namely the effect of exclusion as opposed to admission of the evidence. There is no doubt that what is at issue in this case is a serious offence, indeed a serious social evil, the possession and importation of drugs. Further, there is no doubt that but for the exclusion of the evidence, the appellant would be convicted of the counts against him. It must not be forgotten, however, that the inquiry under s. 24(2) cannot be focussed solely on the specific prosecution at issue; it is the long-term consequences of regular admission or exclusion of this type of evidence on the repute of the administration of justice which must be considered. As the Chief Justice noted in Genest, supra, at p. 82:

While the purpose of the rule is not to allow an accused to escape conviction, neither should it be interpreted as available only in those cases where it has no effect at all on the result of the trial. The consideration whether to exclude evidence should not be so closely tied to the ultimate result in a particular case.

In balancing the long-term consequences of regularly admitting the evidence in this case in the light of how it was obtained against the consequences of excluding it, I conclude that the balance tips in favour of exclusion. The administration of our system of justice will be brought into greater disrepute if this Court were to condone, taking the record as it is given to us by the police and the prosecution, the practice of using an arrest for traffic warrants as an artifice to conduct a rectal exam of an accused who the police do not have reasonable and probable grounds to believe is carrying drugs. In fact, even if reasonable and probable grounds existed, support for which was not established by the Crown, there is still the admission by the Crown that the police deliberately failed to provide the appellant with the proper reason for the arrest, thereby infringing his rights under s. 10(a) of the Charter. The Crown refers to this as "foolish" and a "blunder", but in fact, it amounts to the police deliberately misleading the appellant and using that deception as an artifice to conduct a highly invasive rectal search. Whatever the motives for this deception, it can only lead to an inference of extreme bad faith on the part of the police in that they wilfully circumvented the Charter, a factor which further supports the exclusion of the evidence in this case. This is especially so when what is involved is a violation of the right to counsel as well as a violation of the right to be secure against unreasonable searches. It would be easy, but at the same time very dangerous, to allow the knowledge that the appellant must have had in respect of his possession of the drugs, to influence this Court's assessment of whether the evidence should be excluded. To do so would be to import an ex post facto chain of reasoning that finds no place in an inquiry pursuant to s. 24(2) of the Charter.

As for a case that relied on police good faith and mere "mistake" to tip the balance the other way, consider the case of R. v. Caslake where the RCMP did an unlawful "inventory search" of a car they impounded and should have got a warrant instead. They found a huge bag of marijuana:

The next category is seriousness of the breach. When considering this issue, the court looks at some or all of the following factors: the obtrusiveness of the search, the individual's expectation of privacy in the area searched, the existence of reasonable and probable grounds; and the good faith of the police. In my opinion, all of these point in favour of admitting the evidence. The search was not especially obtrusive. There is no evidence that there was any damage or harm done to the car, the police simply did a thorough search of the interior. There is a lesser expectation of privacy in a car than there is in one's home or office, or with respect to their physical person. Although Officer Boyle did not know that he had reasonable and probable grounds to conduct a search, objectively speaking, he did. Finally, the search was conducted in good-faith reliance on an RCMP policy that requires the interior of impounded cars be inventoried. As a result, the breach was not sufficiently serious to justify exclusion of the evidence.

35 The third question from Collins is whether excluding the evidence would have a more serious impact on the repute of the administration of justice than admitting it. This factor generally relates to the seriousness of the offence and the importance of the evidence to the case for the Crown. In this instance, the prosecution had no case without the evidence. This also weighs in favour of admission.

V.

Conclusion

36 In sum, the application of the Collins factors strongly suggests that the evidence should be admitted under s. 24(2). The trial was still fair, the breach was not serious, and exclusion of the evidence would have a more detrimental impact on the administration of justice than its admission. I would therefore hold that the evidence is admissible and, despite the s. 8 breach, dismiss the appeal.

I know this is a very long post, but hopefully it sheds some light on the principles that are at play in these decisions. I accept that in practice, these ideals will not always be best served, but again, I disagree that there is such disarray in the justice system that the whole thing is "broken".

FTA

PS there's no links because I pulled these quotes from a pay service I use...but you can go to the SCC website and look up the case names for yourselves if you want to read the full judgments.

[FTA Lawyer]

Well let's see now. If he lies to get a warrant and then finds the home filled with cocaine and machine guns, I'm betting he's on safe grounds in knowing he's getting a guilty person punished.

You're completely missing the point! How does the cop know AT THE TIME HE DECIDES TO BREAK THE LAW BY LYING TO A JUDGE TO BE ABLE TO STORM A HOUSE THAT LAWFULLY HE COULD NOT ENTER that he is well placed to do it because it will result in "justice" i.e. the means justify the ends.

He doesn't.

If he goes into an innocent family's home terrorizing them with machine guns you are okay with that because sometimes he will get the guy he's looking for.

That's where we differ.

I'd prefer to have my police follow the laws that they are sworn to uphold and if that means some bad guys get away, so be it. If my wife and young children ever have to suffer the trauma of a botched machine-gun wielding, ski-mask wearing police warrant squad, then what is the point of protecting them from criminal home-invaders? To a child the barrel of the gun and the shouting and the violence all look the same...

FTA

[Argus]

You're completely missing the point! How does the cop know AT THE TIME HE DECIDES TO BREAK THE LAW BY LYING TO A JUDGE TO BE ABLE TO STORM A HOUSE THAT LAWFULLY HE COULD NOT ENTER that he is well placed to do it because it will result in "justice" i.e. the means justify the ends.

All you're doing by requiring a warrant is substituting the judgment of a judge - who realistically has no practical training - for the judgment of a senior police officer. You think this makes perfect sense because, after all, the judge, however he got his appointment (free legal services for the Liberal party for example) is a lawyer, and lawyers are imbued with a natural wisdom and great judgment. Somehow. Even though it's rarely demonstrated.

If he goes into an innocent family's home terrorizing them with machine guns you are okay with that because sometimes he will get the guy he's looking for.

Even with warrants mistakes sometimes happen. But not that often. Cops are busy people, and they generally know who they're dealing with. Busting in on some completely innocent family and terrorizing them is not only a waste of time it leads to big, heavy frowns from their bosses, political whining, and public embarrassment. I'm guessing police will always do their best to avoid such things.

I'd prefer to have my police follow the laws that they are sworn to uphold and if that means some bad guys get away, so be it. If my wife and young children ever have to suffer the trauma of a botched machine-gun wielding, ski-mask wearing police warrant squad, then what is the point of protecting them from criminal home-invaders? To a child the barrel of the gun and the shouting and the violence all look the same...

FTA

I would suggest to you that the odds are very good that if your wife and or children are ever terrorized by armed men it will be the criminals you and your colleagues and the judges are helping keep on the street, not the cops who want to lock them up.

[sharkman]

I submit this knowing those of you who think the justice system in Canada is a shining beacon and can do no wrong, will not be reasoned with. However, I hope some of you who have an open mind will see the case below for what it is, another sad indicator that justice in BC depends not on evidence or crimes, but whether the criminal feels bad for the murder, rape, or in this case, beating that resulted in a paralyzed victim.

Michael Levy was attacked, swarmed and beaten so bad he will never recover. His life will consist of staring at the ceiling or his eyelids, and little else. Several of his attackers were given some time, though they are not what the point of this post is about.

One attacker got no jail time, just a conditional sentence that he could serve at home for 20 months(much less with "good" behaviour). Upon leaving the courtroom after receiving his sentence, he and his companions were followed by a news crew as they stepped into an elevator. The doors closed as the news crew watched. Then from inside the elevator, peals of laughter could be heard. The tape of this incident incensed the crown and defense, and an appeal overturned his sentence and jail time for the remaining time was given.

My point is this: was his violent crime not serious enough to begin with? No it was not, the judge, by all accounts lucid, only gave a conditional sentence. What caused justice to change, new evidence? No. An appeal by the family of the victim? Hell no. It was laughter. What does this mean? It means when the judge gives you a slap on the wrist, simply pretend you are contrite and apologize, and you will get off almost free. But do not laugh, this embarrasses the court. In this case, laughter is a crime.

And this is what passes for justice in BC. You get an actual sentence if you laugh at the court.

Oops, my link didn't quite work as planned. After you click the link, click on Noon News Hour. Then click Attacker will do jail time.

Edited June 18, 2008 by sharkman

[FTA Lawyer]

All you're doing by requiring a warrant is substituting the judgment of a judge - who realistically has no practical training - for the judgment of a senior police officer. You think this makes perfect sense because, after all, the judge, however he got his appointment (free legal services for the Liberal party for example) is a lawyer, and lawyers are imbued with a natural wisdom and great judgment. Somehow. Even though it's rarely demonstrated.

We make a second nurse sign off before one nurse pushes meds through an IV, most business accounts require two signatures to write a cheque, most university students get someone to proof-read their term papers etc. Requiring a warrant means putting a second set of eyes on the situation...eyes that are not immersed in the investigation and are likely to stop injustice due to overzealousness or mistakes before it happens.

In my opinion that second set of eyes should not be circumvented and should not be lied to. I guess that makes me a lunatic lawyer or something.

Even with warrants mistakes sometimes happen. But not that often. Cops are busy people, and they generally know who they're dealing with. Busting in on some completely innocent family and terrorizing them is not only a waste of time it leads to big, heavy frowns from their bosses, political whining, and public embarrassment. I'm guessing police will always do their best to avoid such things.

Of course police do their best to avoid such scenarios. But you make my point for me...even with warrants [validly obtained without lying or fudging based on cop hunches] mistakes happen. So why are you okay with cops not following the laws when they get warrants? Don't you see such practice drastically increases the risk of mistakes?

I would suggest to you that the odds are very good that if your wife and or children are ever terrorized by armed men it will be the criminals you and your colleagues and the judges are helping keep on the street, not the cops who want to lock them up.

You may well be right...but it is a dodge of the issue...if the cops become the "perps" because they openly disobey the law then they deserve the same contempt that you would show to my clients. You disagree with this because you presume that every time a police officer breaks the law it will be a stupid law that was just getting in his way and that his breaking the law was just to get a bad guy punished.

You are naive if you think the honor and loyalty of police officers will serve to protect society as you want it to once you start telling police it's okay to cheat and deceive as long as they think they are doing it for a just cause.

FTA

[sharkman]

I've got an idea you won't like FTA. Why don't we give the police the same benefit of the doubt that we give the criminals? The cop may have missed crossing a t when gathering evidence, but his intent was not to get loads of evidence thrown out, was it? Or how about innocent of a mistake until proven guilty.

[FTA Lawyer]

I submit this knowing those of you who think the justice system in Canada is a shining beacon and can do no wrong, will not be reasoned with. However, I hope some of you who have an open mind will see the case below for what it is, another sad indicator that justice in BC depends not on evidence or crimes, but whether the criminal feels bad for the murder, rape, or in this case, beating that resulted in a paralyzed victim.

Michael Levy was attacked, swarmed and beaten so bad he will never recover. His life will consist of staring at the ceiling or his eyelids, and little else. Several of his attackers were given some time, though they are not what the point of this post is about.

One attacker got no jail time, just a conditional sentence that he could serve at home for 20 months(much less with "good" behaviour). Upon leaving the courtroom after receiving his sentence, he and his companions were followed by a news crew as they stepped into an elevator. The doors closed as the news crew watched. Then from inside the elevator, peals of laughter could be heard. The tape of this incident incensed the crown and defense, and an appeal overturned his sentence and jail time for the remaining time was given.

My point is this: was his violent crime not serious enough to begin with? No it was not, the judge, by all accounts lucid, only gave a conditional sentence. What caused justice to change, new evidence? No. An appeal by the family of the victim? Hell no. It was laughter. What does this mean? It means when the judge gives you a slap on the wrist, simply pretend you are contrite and apologize, and you will get off almost free. But do not laugh, this embarrasses the court. In this case, laughter is a crime.

And this is what passes for justice in BC. You get an actual sentence if you laugh at the court.

Oops, my link didn't quite work as planned. After you click the link, click on Noon News Hour. Then click Attacker will do jail time.

Well, Sharkman...thank you for demonstrating your outrageous bias and proving my point that everyone is quick to trash the system unfairly, but will not give credit to the good outcomes.

"His life will consist of staring at the ceiling or his eyelids and little else?" This is not only offensive to disabled people as an entire group, but it is manifestly false and an outright deception for the purpose of trying to make your argument look like it has merit. We can all feel sympathy for the victim based on his actual suffering and not some fake image conjured by the "sharkman."

Look at the Victim...staring at the ceiling...no wait, going to the courthouse and looking remarkably well.

It is you that wants to ignore the evidence. The kid who did the laughing originally got a 20 month conditional sentence becuase he punched the victim during the attack. He was punished according to his actual participation in the crime. The concept of conditional sentences is very much dependent on a person showing they are worthy of serving a community based sentence, and so, jailing him for bursting out laughing is actually a principled and appropriate response.

The kid who actually paralyzed the victim by whacking him with an axe three times and severing his spinal cord got 10 years in jail. His participation was far different than punching, and so was his sentence.

The other kid got 3 years in jail, so I will guess that he was more involved than the laugher, less involved than the axe man.

There was a fourth who was acquitted, so I'll assume he was not proven guilty of what he was charged with.

The victim's family are quoted in the link I provided as being "happy" and "pleased" with the outcome.

Ahh, yes, just another classic example of an irreparably "broken" justice system. Good work sharkman. Your credibility is soaring after this post! I can't wait for your next objective anecdote which proves how right you are...

FTA

[sharkman]

I've read the appeal court's reasons for overturning the ruling, and it's a bunch of but covering. The bottom line is this stupid immigrant's son would have walked with 20 months conditional if he had only kept his mouth shut. Yeah he punched, but he was participating in attempted murder, which obviously means nothing to you.

So you, FTA, must be the shining example of objectivity whilest defending the true and noble justice system of our land, eh?, crying with your clients like you do. You obviously couldn't see injustice if it attacked you with an axe. No doubt you'd be happy with 10 years for the attacker while you drooled for the rest of your life.

10 years for forcing another person into a corpse that can only stare at their eyelids or the ceiling is not enough, neither is 3 or 20 months of house arrest. Which ever of these kids is an immigrant should be evicted from the country along with their families for starters, but this punk who will be free Jan of 09 has our 'justice' system to thank. In his old country, he'd probably get executed, but then he'd never be stupid enough to break such laws in that country.

[FTA Lawyer]

I've read the appeal court's reasons for overturning the ruling, and it's a bunch of but covering. The bottom line is this stupid immigrant's son would have walked with 20 months conditional if he had only kept his mouth shut. Yeah he punched, but he was participating in attempted murder, which obviously means nothing to you.

So you, FTA, must be the shining example of objectivity whilest defending the true and noble justice system of our land, eh?, crying with your clients like you do. You obviously couldn't see injustice if it attacked you with an axe. No doubt you'd be happy with 10 years for the attacker while you drooled for the rest of your life.

10 years for forcing another person into a corpse that can only stare at their eyelids or the ceiling is not enough, neither is 3 or 20 months of house arrest. Which ever of these kids is an immigrant should be evicted from the country along with their families for starters, but this punk who will be free Jan of 09 has our 'justice' system to thank. In his old country, he'd probably get executed, but then he'd never be stupid enough to break such laws in that country.

Even when the point is jabbed right into your eye you miss it.

I don't propose to minimize how devastating it must be for a young man to be made a quadrapelegic, but he is not a "corpse that can only stare at his eyelids" nor is he "drooling for the rest of his life".

But the fear-monger image of a person that seriously paralyzed incites people more, so you continue to use it even when it is pointed out to you that it is false.

I'll beleive you when you say you've read the Court of Appeal's reasons...but can you point out to me what part you consider to be "but-covering"? See, your analysis makes no sense to me because when I read it, I see an appeal court that says the trial judge was wrong to minimize the involvement of the "puncher" to such an extent that he was given a conditional sentence. It says that "swarming" incidents must be punished more severely, especially where the victim suffers devastating injury.

Who is covering whose "but" exactly?

BC Court of Appeal - R. v. Nguyen

To begin, I do not consider Mr. Nguyen’s involvement in the attack to be minimal. Even though Mr. Nguyen’s physical involvement was limited to punching Mr. Levy, he was an integral participant in a “swarming”, i.e., an unprovoked, violent, and cowardly attack on a defenceless person: R. v. N.(C.) (2006), 213 C.C.C. (3d) 56 (Ont. C.A.) at para. 26. While Mr. Nguyen did not know that Mr. Green and Mr. Quintana had weapons, he nonetheless agreed to join with them in beating up Mr. Levy, and he must have known that it was likely that Mr. Levy would suffer some degree of bodily harm. While undoubtedly it may be appropriate in swarming cases to distinguish, to some degree, those who used weapons from those who did not, it is not open to Mr. Nyugen to minimize his culpability “by offering his individual involvement alone, divorced from the context of the collective action”: R. v. M.(J.S.), 2005 BCCA 417, 200 C.C.C. (3d) 400 at para. 64; see also R. v. Helm, 2006 BCCA 240, 210 C.C.C. (3d) 218 at para. 4. Those who choose to participate in gang-like violence cannot expect to have their culpability determined without regard to the totality of the harm inflicted. Each is accountable for the collective action.

I would have thought that even you could say that the above reasoning is very good and you could commend the BC Court of Appeal for correcting the wrong that the trial judge did...but instead you find fault in their decision too by calling it "but covering". Can you explain?

As for being happy with 10 years for the attacker, I'm telling you what the mom said she thought her son, the victim's, reaction would be...and what the sister of the victim said she felt about it. Maybe you should respect their opinions of justice rather than spaz on their behalf that the system is broken. Is it possible they have a more informed perspective on this case than you?

With all of your unintelligent references to immigrants and deportation, what would you say about this case if a white 4th generation Canadian was the offender? Why does his ancestry factor in to the equation for you?

FTA

[guyser]

With all of your unintelligent references to immigrants and deportation, what would you say about this case if a white 4th generation Canadian was the offender? Why does his ancestry factor in to the equation for you?

FTA

" He was a good ol' boy ".....or something like that.

[sharkman]

That's funny, I've argued for serious jail time for white criminals on this thread, so you fellas automatically think if it was a white guy wielding the axe I'd change my tune? And as far as my "staring at eyelids", comment, why don't you interview 10 who have become quadrapelegics after a normal life and get back to us.

My concern with crimes committed by immigrants has to do with the number of known criminals/gang memebers who are allowed to enter this country, and those immigrants who end up committing crimes here. If they get kicked out, they simply disappear. That's another element of our "justice" system that needs overhaul, but I won't hold my breath expecting you two to see the light on this issue either.

The newscast I linked to on the swarm attack showed how the main reason an appeal was made on the giggling convict was they got his giggling on tape. Again, if he would have kept his mouth shut, he'd still be in house arrest. As for the family of the victim, justice is justice, regardless of what family members think. You yourself believe this and ignore the opinions of family members when they disagree with the court's decisions. So now that you've got an agreeing opinion you play the other side of the street!

Ten years actually comes out to, what, under seven? For attempted murder, I know in Canada that's probably considered a lengthly time, but our sentences used to be much longer. What changed? The way we view violent crime, and the way we view criminals. They are now considered more of a victim than the actual victims. Also, in Canada we haven't significantly added more capacity to the prison system while our population, and therefore our criminal element has grown by almost 10 million.