Broken Justice - these infuriating cases have it all

[Wilber]

Well, making things up isn't going to advance the discussion.

A far less wild conjecture is this: A commitment to the rule of law is probably the most fundamental thing differentiating us from societies like Afghanistan, where tribalism and corruption are the order of the day. Why is it so hard to inculcate in a society? Because it requires one to recognize the broader necessity of locally unpleasant outcomes -- to get past small-minded outrage over the occasional problematic result. If you think that we -- cops, judges, politicians, citizens -- should follow (overall reasonable) laws except in the handful of cases where following the rules creates outcomes we don't like... then you don't believe in the rule of law. If you think that your gut feelings (or that other word for them, "common sense") should trump an adherence to the law and legal procedures, then you don't believe in the rule of law.

That doesn't make you particularly unusual. It's a fair bet that most people on this planet don't. Also, most people on this planet do not live in relatively just, relatively low-crime, relatively safe societies like ours. You want a broken justice system? Just keep ranting and campaigning to have the rule of law overturned in favour of common sense, gut feelings, and whatever the police can dig up, irrespective of the methods. You too can have an Afghanistan! Right here in Canada, if you work at it.

Who's making anything up? Judges do willfully ignore evidence of criminal activity on grounds of what they perceive to be a rights violation. Nothing to do with the value or strength of the evidence itself. It is one thing to disallow evidence on the possibility it may have been physically compromised or tampered with but it is entirely something else to ignore a crime, criminal and its victims simply because some judge decides a suspect has had his rights violated because a police officer asked him to open his hand. That is far more onerous and does little but add to the increasing amount of dissatisfaction and mistrust law abiding people have in this system. By choosing to ignore criminal activity by invoking the charter in a nit picking fashion, judges are in fact picking and choosing which rule of law they themselves believe in.

What people like me want is for judges to apply some common sense and logic to criminal cases rather than treating every trial as some sort of constitutional test case to produce precedents that will make the future use of common sense and logic even less likely.

People like you, FTA and the courts condone the search with out cause of Canadian citizens every time one enters a customs hall at a Canadian airport or drive up to a border crossing, then maintain that if the cops see someone committing a crime, they are violating his rights if they don't get a warrant before asking him to merely open their hand. And you accuse me of being obtuse.

WTF is my considered reaction to the actions of judges who make stupid decisions. IMO far more logical than using the same old dogma to justify those stupid decisions which will ensure that even more stupid decisions will be made in the future.

Edited May 12, 2008 by Wilber

[guyser]

What people like me want is for judges to apply some common sense...

Like upholding ones rights ?

I would like to read the Judge's position when he releases them (opening the hand) , but as far as a search warrant on the Penthouse, well, common sense did not come into play there did it?

That was just being lazy.

[Wilber]

Like upholding ones rights ?

I would like to read the Judge's position when he releases them (opening the hand) , but as far as a search warrant on the Penthouse, well, common sense did not come into play there did it?

That was just being lazy.

From the article it would seem the police should have got a warrant to enter the apartment. I would like to see you stand on your rights the next time you clear customs.

Edited May 12, 2008 by Wilber

[sharkman]

Common sense: Arrested person has a large amount of counterfeit cash and drugs on his person, outside of his place of residence. Wait for a warrant to search his property, but hold it so no one can sneak in and remove evidence.

Lack of common sense by judge: Person that fled upon being arrested can not be re-arrested when cops, upon running his plates, find his car and him outside his residence. Even though they recognize him and have his car, they can not arrest him for fleeing previous arrest.

[guyser]

I would like to see you stand on your rights the next time you clear customs.

I would have to defer to our legal minds around here to answer that, but as far as I am concerned , I am trying to enter a foreign land ( or returning home) and as such I know I have diminished expectations at a border crossing.

[Wilber]

I would have to defer to our legal minds around here to answer that, but as far as I am concerned , I am trying to enter a foreign land ( or returning home) and as such I know I have diminished expectations at a border crossing.

Why are your expectations diminished? Other countries are not the issue, they aren't subject to our charter. Why should your rights be suspended when you are entering your own country?

[guyser]

Common sense: Arrested person has a large amount of counterfeit cash and drugs on his person, outside of his place of residence. Wait for a warrant to search his property, but hold it so no one can sneak in and remove evidence.

Agreed.

Lack of common sense by judge: Person that fled upon being arrested can not be re-arrested when cops, upon running his plates, find his car and him outside his residence. Even though they recognize him and have his car, they can not arrest him for fleeing previous arrest.

This is what I want to read about. Thinking about it for a bit though, I can see the hand the same as a backpack. If not in plain sight , then they have to do other things . I imagine one of which could be videotaping the guy to determine cause.

But I want to read his thoughts.

[guyser]

Why are your expectations diminished? Other countries are not the issue, they aren't subject to our charter. Why should your rights be suspended when you are entering your own country?

For national security reasons I suppose , not to mention that is the ballgame I agree to play when I want in.

A border is not the same issue as one walking a street in Canada.

Reasonably, I can expect the Border Guards to search my vehicle without cause and no amount of my citing the Charter will change that. Besides, they have a "warrant" 24/7.

I dont have to identify myself to someone on the street, but I sure as hell have to at the Border when they ask for ID.

[Wilber]

For national security reasons I suppose , not to mention that is the ballgame I agree to play when I want in.

A border is not the same issue as one walking a street in Canada.

You suppose.

Why isn't a border the same issue as walking a street in Canada? It is Canadian soil and you are a Canadian. How is it that you are a national security issue at the border but not walking down the street?

Edited May 12, 2008 by Wilber

[guyser]

You suppose.

Why isn't a border the same issue as walking a street in Canada? It is Canadian soil and you are a Canadian. How is it that you are a national security issue at the border but not walking down the street?

You could just spell it out Wilber. What is your point?

I did say I would rather some legal minds answer this. I do not know the statutes for border crossing.

I could very well be a nat'l security threat walking the streets. And if I am, I will bet you the police make damned sure to have a warrant for my arrest failing any other reasonable legal reason to detain me. And if I am such a threat they will get a security certificate that trumps the charter and keep me incarcerated a long time, long enough to figure out what to do. And my recourse? Not much I understand.

[Oleg Bach]

I know, the drug dealer got most of his charges dropped because the cop ASKED him to open his hand. The cop didn't force him, or grab the hand, he simply asked. And for that, a bleeding heart judge releases a hardened criminal from most of his crimes. Sigh. Then the cops had the audacity to arrest the guy they had seen previously. The judge ruled that they couldn't recognize him from the previous arrest, and therefore had no basis to arrest him the second time. How revolting.

The Judge rulee that they the cops could not recognize the crimminal from the previous arrest. Mabye the judge is projecting his failing in memory of recognition on the cops - kind of like having a disease and assumeing that everyone is afflicted. Sounds like the judge has a memory problem and would like it so that enforcement officers would pull the party line of forgetfulness together. I truely believe that our judges and cops are over medicated..for instance you can walk into a clinic and after a 40 second conversation you can walk out with some high tech dope...and that is someone with out a problem where as cops and judges who visit the MD because of their stressfilled and sometimes unhappy and depressed lives...

For the most part must be jacked up on Pharma dope...and no one knows the side effects of these compounds. Where as with booze the side effects are tried and true and reliable. Put it in perspective...we have a drug problem with our judicary and our cops...legal though they be but all chemicals introduce into the human system effect perception and judgement...I believe the failing judicaries problems are that simple...dope! Would you feel safe having a chronic pot smoker - crack addict - or Heroine addict or daily drunkard judgeing you?

[Wilber]

You could just spell it out Wilber. What is your point?

My point is that your rights are not what you think they are. If the Charter is all powerful when it comes to what the authorities can do with regard to searching you, why doesn't it apply to Canadians on Canadian soil when it happens to be CBSA who is doing the searching? Does the Charter not apply to them and if so, why not?

My point to you and others who believe that the court's so called interpretation of the Charter is based on some sort of solid foundation of logic and principle, is actually paper thin and full of holes, not to mention bullshit and compromise.

I'll ask you the question again. Why are you a Canadian citizen regarded as a threat to national security at a border crossing or in a customs hall but not while you are walking down the street? What logic would a court use to say that you are and why are they willing to give CBSA a pass on an honest citizen's charter rights that they won't give to anyone else who has to deal with the true scumbags of our society?

[Oleg Bach]

My point is that your rights are not what you think they are. If the Charter is all powerful when it comes to what the authorities can do with regard to searching you, why doesn't it apply to Canadians on Canadian soil when it happens to be CBSA who is doing the searching? Does the Charter not apply to them and if so, why not?

My point to you and others who believe that the court's so called interpretation of the Charter is based on some sort of solid foundation of logic and principle, is actually paper thin and full of holes, not to mention bullshit and compromise.

I'll ask you the question again. Why are you a Canadian citizen regarded as a threat to national security at a border crossing or in a customs hall but not while you are walking down the street? What logic would a court use to say that you are and why are they willing to give CBSA a pass on an honest citizen's charter rights that they won't give to anyone else who has to deal with the true scumbags of our society?

The charter is a great piece of paper..but all judges and lawyers lie about it. You can say to a judge.."Sir that is surely and issue to be addressed though the charter?' The judge and lawyers retort woudl be "No...that was tested last year and it failed so go home" You do your homework and low and behold..they lawyers and judges are lieing..

Here is a prime example...for instamce the mobility rights within the charter are very clear and simple...I saw in the family court system (if you could call it a court) Men who after being give a huge federal taz burden to shut them up and weaken them - would then have their drivers permitt taken away unless they paid tribute to the insidious system...In effect the man had his mobility rights and his right to gainful employment removed...He in a car culture now had NO moility rights. Funny - they said this was also tested with the charter but of course was another misleading statement by laywer. Every common citizen should be able to use the simple charter that is plainly written in a court of law any time he wants. But NNNNOOOOOOOOOO courts don't like the charter because it actually bakes you as powerful as a judge.

Helping my brother in a prolonged case was quite the learning experience...we learned that the judicary was corrupt from top to bottom right up to the Supreme Court of Canada and justg as bizzarly corrupt at the idotic Human rights commission...How do I know that it's corrupt? WHAT REALLY TOPS IT OFF IS THE FAT TAT YOU HAVE MEMBERS OF THE FEDERAL COVERNMENT WITH CLEAR TIES TO ORGAINIZED CRIME..WHICH MAKES THE GOVERNMENT STOOLIES OF ORGAINIZED CRIME...REAL SIMPLE!

Thrity years ago if you had a bad temper in public school or if you cried when the bullies beat you up ---The incidents were put on report and kept for decades...My oldest brother was denied entance in the forces because his PUBLIC SCHOOL RECORD...showed that he weep like a baby when the big kids kicked him..they deemed him mentally unsound and thus was considered a security risk..................

But now! You have someone with direct ties to dope dealers - theives and murdering creeps that kill for fun and profit...and that is OK///// I would say that if you have one orgainized crime person in government then..Orgainized government is NOW offically orgainized crime...Now you know why the judges release killers and dope dealers...cause they are part of the club...sinister!

[sharkman]

Wo, wo, buddy. You had me at, "but all judges and lawyers lie about it."

Edited May 13, 2008 by sharkman

[FTA Lawyer]

Drivel. The situation in Afghanistan has nothing to do with "rule of law". Or are you suggesting things in Iran are all peachy and wonderful because they follow Sharia law?

The real problem which the supporters of the legal system refuse to acknowledge is that the system is already broken. It should not take a year to hold a trial for a common crime with mountains of evidence. Most simple crimes should be disposed of within days of arrest. Justice should be swift and certain. In our case it is neither. When "the rule of law" perpetrates injustice then there is something wrong and needs addressing. It isn't mere emotionalism or thirst for vengeance. The law should, at its core, address the fundamental justice of a case. Instead it addresses often ideologically based interpretations of the language in laws without regard to the justice of a finding.

Let me give you an example. I forget the case number but that's beside the point. A policeman investigating a murder followed a trail to a nearby trailer - not a trailer home mind - and opened it to find a man with blood on his clothes - the guilty party. Now this policeman was following the law precisely, for the courts had previously ruled that he was perfectly within his rights to open that door and check out that trailer. The courts now decided, however, that times had changed, and that a stricter interpretation of the law was required, and so set the murderer - unquestioned murderer - free because the policeman had violated his rights - the newly defined rights the court had just changed. There was little concern in the court's ruling about the fundamental justice of the thing, about the dead man or the killer going free. This is the kind of thing that angers people and throws the administration of justice into disrepute. Ivory tower judges making decisions disconnected from reality and from any care about justice. Mind you, idiotic parole laws administered by fools helps with the contempt factor for the "justice" system.

Argus,

You call a post which was a very well-written "big picture" description of why adherence to the rule of law necessarily will sometimes lead to results we don't like "drivel" and attempt to prove that with citing a specific case incorrectly. Fundamentally incorrectly.

The case you are describing is clearly the 1997 SCC judgment of R. v. Feeney. But, you've got some serious accuracy problems. The trailer entered by the police was Feeney's dwelling house, the police were found to have acted contrary to both any "new" standards of the Charter and to the previous (and not new or changed) common law on warrantless entry to homes.

At the time the police illegally entered Feeney's home, they had no evidence capable of giving them reasonable grounds to beleive he had done anything wrong...and in fact, the officer personally testified that he had no belief in his own mind that Feeney had committed any crime and no intention to arrest him...he just illegally entered his home to "see what he was doing".

Here's a decent excerpt from the majority decision:

When the police entered the trailer where Feeney was sleeping, which constituted his dwelling house (recall that Colet, supra, stated that a rudimentary shelter may constitute a dwelling house), they did not have a warrant. Consequently, regardless of whether reasonable and probable grounds existed, or whether proper announcement was made, the arrest was illegal, unless there were exceptional circumstances. This clearly was not a case of hot pursuit, nor, in my view, did exigent circumstances exist. Lambert J.A., for a unanimous Court of Appeal, stated at p. 234 that, "the police were facing a situation which could be classified as an emergency, or as exigent circumstances which would require immediate action, and that in addition they were facing circumstances where the possibility of the destruction of evidence, particularly evidence in relation to bloodstains, was a real one and had to be addressed". I do not agree with this characterization of the circumstances. According to James A. Fontana (The Law of Search and Seizure in Canada (3rd ed. 1992), at pp. 786-89), exigent circumstances arise usually where immediate action is required for the safety of the police or to secure and protect evidence of a crime. With respect to safety concerns, in my view, it was not apparent that the safety of the police or the community was in such jeopardy that there were exigent circumstances in the present case. The situation was the same as in any case after a serious crime has been committed and the perpetrator has not been apprehended. In any event, even if they existed, safety concerns could not justify the warrantless entry into the trailer in the present case. A simple watch of the trailer in which the police were told the appellant was sleeping, not a warrantless entry, would have sufficiently addressed any safety concerns involving the appellant. With respect to concern about the potential destruction of evidence, at the time the police entered the trailer, they had no knowledge of evidence that might be destroyed; at best, they had a suspicion that the appellant was involved in the murder. Simply because the hunch may have turned out to be justified does not legitimize the actions of the police at the time they entered the trailer. As I stated in R. v. Kokesch, [1990] 3 S.C.R. 3, at p. 29, "t should not be forgotten that ex post facto justification of searches by their results is precisely what the Hunter standards were designed to prevent".

53 The circumstances surrounding the police entry into the trailer were similar to those following any serious crime: a dangerous person is on the loose and there is a risk that he or she will attempt to destroy evidence linking him or her to the crime. To define these as exigent circumstances is to invite such a characterization of every period after a serious crime. In my view, exigent circumstances did not exist when the police entered the trailer. Consequently, even if there is an exception to the warrant requirement in exigent circumstances generally, rather than only in hot pursuit, which I refrain from deciding in the present case, the forcible entry in this case required a warrant. Given that the police had not obtained a warrant, the arrest was illegal.

Where I guess we differ is that I think police with their guns drawn (as they were in Feeney) should not be able to forcibly enter my house to "see what I am doing" when they have no reason to believe I have done anything wrong.

You on the other hand seem to be content with that standard, because once in a while, such storm-trooper behaviour will mean that the police happen to find a criminal.

While the reference to Afghanistan in previous posts may have been a bit much given the complexity of the war there etc. the idea behind the reference is sound. The free democracy that we live in includes protection for citizens against illegal interference from the state.

You may think that an Argentinian or Columbian police death squad is impossible in a country like Canada...I hope you are right...but I say it has far more to do with people like me fighting to prevent it than it does people like you trash-talking our judicial system.

And as to your bold anecdotal gripes about the "broken" system, I will contact the Chief Judge of our Provincial Court (where the majority of criminal matters are prosecuted) for up-to-date stats if they are available, but here is a link from actual numbers in Alberta from 1995-96.

Alberta Criminal Cases 95-96

In case you don't want to analyse the graph yourself, here's the summary you need to consider:

Two thirds of all Federal statute cases disposed of in provincial court in Alberta reached a final disposition within sixteen weeks, with only 6% of cases taking more than 1 year to reach a final disposition

Now, anecdotally for my part, I would expect that the number is higher than 6% in today's terms, but not much. The percentage of matters going to trial as of 2 years ago was quoted to me officially by the Assistant Chief Judge as being 8 to 12 percent.

My point is, the system processes vast amounts of criminal cases most without outrageous results and most in completely reasonable time frames. Those relying on the media for their window to the justice system (because they are not working in it) get a really invalid picture of what is really happening on the "front lines" so to speak.

FTA

[FTA Lawyer]

Here's a more up-to-date link regarding criminal case outcomes (no info re how long they took). By my math, in 2005 / 2006 of all the criminal cases in the entire country, 65.5 % ended in conviction.

Canadian Criminal Cases 2005 / 2006

Of course, many of these would involve plea-bargains, but the point is, if you added up all of the articles in the paper or stories on tv (or this thread for that matter), you would be led to believe that the vast majority of people charged "get off". Not true.

FTA

[Argus]

Argus,

You call a post which was a very well-written "big picture" description of why adherence to the rule of law necessarily will sometimes lead to results we don't like "drivel"

No. To be more accurate I called the following drivel:

Just keep ranting and campaigning to have the rule of law overturned in favour of common sense, gut feelings, and whatever the police can dig up, irrespective of the methods. You too can have an Afghanistan! Right here in Canada, if you work at it.

Which it is, in part because it presupposes that complaints against injustice in the system somehow endanger the system, and in part because it presupposes that anyone complaining about injustices in the system want to abandon "the rule of law", as opposed to reforming it to make it work better.

The case you are describing is clearly the 1997 SCC judgment of R. v. Feeney. But, you've got some serious accuracy problems. The trailer entered by the police was Feeney's dwelling house, the police were found to have acted contrary to both any "new" standards of the Charter and to the previous (and not new or changed) common law on warrantless entry to homes.

That is not how I recall it reported, but I will grant you the point as it really isn't material to my position.

You on the other hand seem to be content with that standard, because once in a while, such storm-trooper behaviour will mean that the police happen to find a criminal

.

Does anyone actually suspect that the police will be randomly opening doors with gun in hand to check for criminals? I mean, really?

The man who murdered Boyle stole his truck. The truck was found crashed, and a woman told the investigating officer she saw Feeney walking away from the truck. The cop - a county mounty out in the boonies, then went to a broken down trailer and knocked. When he got no answer he opened the unlocked door to see if Feeney was inside.

Now I'm not going to argue that this was or was not appropriate under the law or constitution as those are hardly my areas of expertise. What I am saying is that it was grossly unjust to set Feeney free. And there ought to be a component of law which sets aside such technical breeches of the law, especially by well meaning people, if doing so would result in a fundamental injustice.

You may think that an Argentinian or Columbian police death squad is impossible in a country like Canada...I hope you are right...but I say it has far more to do with people like me fighting to prevent it than it does people like you trash-talking our judicial system.

Did we have death squads before we got the Constitution? Nope. Fifty years ago Feeney would have been dragged off to jail, convicted, and that would have been the end of it. Would that have constituted an injustice? Nope. All you and people like you "fighting to prevent it" have managed to accomplish over the last few decades, is to make the streets less safe for ordinary people, because all the vermin like Feeney are out here with us instead of in prison where they belong.

In case you don't want to analyse the graph yourself, here's the summary you need to consider:

Now, anecdotally for my part, I would expect that the number is higher than 6% in today's terms, but not much. The percentage of matters going to trial as of 2 years ago was quoted to me officially by the Assistant Chief Judge as being 8 to 12 percent.

I was speaking about people arrested who go to trial, and how long that takes, not people who get their case plea bargained down to a lesser offense, are given a small sentence, credit for time served, and then early parole. Not that all that isn't part of what people hate about the "justice" system, of course.

My point is, the system processes vast amounts of criminal cases most without outrageous results and most in completely reasonable time frames

.

I suggest to you that your definitions of "outrageous" and "reasonable" are probably quite different than that of most people in this country. I personally find it outrageous that a person with multiple convictioins for violence is out on the street at all, much less gets his case plea bargained down, and then 2 for 1 or 3 for 1 on his time served followed by parole shortly thereafter.

[Argus]

Here's a more up-to-date link regarding criminal case outcomes (no info re how long they took). By my math, in 2005 / 2006 of all the criminal cases in the entire country, 65.5 % ended in conviction.

Canadian Criminal Cases 2005 / 2006

Of course, many of these would involve plea-bargains, but the point is, if you added up all of the articles in the paper or stories on tv (or this thread for that matter), you would be led to believe that the vast majority of people charged "get off". Not true.

FTA

I don't like plea-bargaining at all. It either means someone gets less than he deserves for what he did, or is forced to plead guilty to something he didn't do. I recognize that we can't do without it under the current system, but the reason we can't do without it is because of how absurdly complex, and thus expensive and time consuming the law is.

[FTA Lawyer]

That is not how I recall it reported, but I will grant you the point as it really isn't material to my position.

Actually it is fundamental to your position. You are asking us to excuse the police for breaking hundreds of years old law that says they can't go into someone's home without a warrant (The SCC cited a case decided in 1604 for that proposition). You tried to assist your argument by saying that the police were following the known legal standard but were hoodwinked by some crazy judge imposing some new rule under the Charter...and that is wrong.

Eliminate the Charter altogether, and the officer committed an illegal arrest and contrary to what you are trying to argue, the courts frowned upon illegal arrests just as much pre-Charter as they do today. We had evidence exclusion rules then too.

Does anyone actually suspect that the police will be randomly opening doors with gun in hand to check for criminals? I mean, really?

Well, the SCC just nixed RCMP using police dogs and armed officers to perform random searches of citizens in bus stations and children in schools and the officer in Feeney testified that he did not have grounds to arrest the guy nor grounds for a warrant and that didn't stop him from pulling his gun and going into Feeney's home now did it?

Now I'm not going to argue that this was or was not appropriate under the law or constitution as those are hardly my areas of expertise. What I am saying is that it was grossly unjust to set Feeney free. And there ought to be a component of law which sets aside such technical breeches of the law, especially by well meaning people, if doing so would result in a fundamental injustice

It's hardly charitable of you not to argue whether it was appropriate...it is 100% clear that it wasn't! The officer himself knew he had no legal authority to enter the trailer but did so anyway! As for the "component of law" you are talking about, we have it...it's s. 24(2) of the Charter.

Charter breaches do not automatically lead to exclusion of evidence. The SCC majority analysis of this point is incredibly lengthy, so follow the link to read it yourself if you want...but here's what I think is the crux of why they ejected the evidence (note...s.10( right to counsel was also completely disregarded by the police in this case):

R. v. Feeney

In summary, the violations in the instant case that were associated with the gathering of the shirt, shoes, cigarettes and money were serious. The police flagrantly disregarded the appellant’s privacy rights and moreover showed little regard for his s. 10( rights. Indeed, while such misconduct was not directly responsible for the gathering of the shirt, shoes, cigarettes and money, the fact that the appellant did not speak with a lawyer for two days following his detention, yet the police did not cease in their efforts to gather evidence from him, indicates the lack of respect for the appellant’s rights displayed by the police. In light of this pattern of disregard for the rights of the appellant, in my view the obtention of the shirt, shoes, cigarettes and money was associated with very serious Charter violations.

Effect of Exclusion on the Repute of the Administration of Justice

81. The admission of the conscriptive evidence, the statements and the fingerprints, would, as discussed above, impact on the fairness of the trial. Consequently, the repute of the administration of justice would be harmed by their admission and they are inadmissible. The other evidence, while not conscriptive, was obtained as the result of a very serious intrusion of the appellant’s privacy rights. Moreover, the evidence was associated with serious violations of the appellant’s s. 10( rights, indicating a pattern of disregard for the Charter by the police in the present case.

82. While the appellant stood accused of a very serious crime, in my view the following words of Iacobucci J. in Burlingham, supra, at p. 242, apply to the present case:

... we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he or she actually committed those crimes, is entitled to the full protection of the Charter. Short-cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying s. 24(2).

83. The serious disregard for the appellant’s Charter rights in the case at bar suggests that the admission of the evidence would bring greater harm to the repute of the administration of justice than its exclusion. The shirt, shoes, cigarettes and money were inadmissible under s. 24(2), along with the statements and the fingerprints. If the exclusion of this evidence is likely to result in an acquittal of the accused as suggested by L’Heureux-Dubé J. in her reasons, then the Crown is deprived of a conviction based on illegally obtained evidence. Any price to society occasioned by the loss of such a conviction is fully justified in a free and democratic society which is governed by the rule of law.

Of course, you are free to disagree with this analysis...and at home in their living rooms, so can the police. When they are on the job, the police need to follow the law and when they flagrantly ignore 400 years of common law, I don't see why it's not their fault that the accused killer goes free...

Did we have death squads before we got the Constitution? Nope. Fifty years ago Feeney would have been dragged off to jail, convicted, and that would have been the end of it. Would that have constituted an injustice? Nope. All you and people like you "fighting to prevent it" have managed to accomplish over the last few decades, is to make the streets less safe for ordinary people, because all the vermin like Feeney are out here with us instead of in prison where they belong.

And people like you advocating the "so what if the cops don't follow the law or respect citizen's rights" approach are therefore able to be proud of "accomplishing" gross injustices like the 25 or so Canadian cases you can read about on the site of the Assoc. In Defence of the Wrongfully Convicted.

Justice Denied

I suggest to you that your definitions of "outrageous" and "reasonable" are probably quite different than that of most people in this country...

I suspect not...here's some things from the AIDWYC website that I find to be outrageous and unreasonable...you tell me if I'm way off...

Wilbert Coffin was hanged for murder in Quebec on February 10, 1956. The federal Justice Department is now investigating whether the Gaspé woodsman was actually guilty of the crime.

...

William Mullins-Johnson was convicted in 1994 of first-degree murder in the death of his four-year-old niece in Sault Ste. Marie. During the trial, four pathology specialists, including a Dr. Charles Smith, were asked to review tissue samples and evidence. Dr. Smith was the only specialist of the four to conclude that the child had been sexually assaulted at the time of death, which contradicted defence evidence that the child had died of natural causes.

...

Romeo Phillion was convicted in 1972 of the murder of a firefighter in Ottawa. New evidence was identified, including a police report not shown to the defence at the original trial, that supported Phillion's alibi that he was at a service station 200 kilometres from Ottawa when the crime took place. There was also evidence that four Crown witnesses all changed their testimony about when they saw Philion in Ottawa. After serving 31 years in prison, Philion, as a result of AIDWYC's efforts, was released on bail in July 2003

...

Steven Truscott was sentenced to death in 1959 at the age of 14 for the murder of 12-year-old Lynne Harper, on the basis of unreliable police and prosecution evidence

...

David Milgaard was released on April 17, 1992 and finally exonerated in 1997 as a result of DNA testing arranged through AIDWYC. That same testing confirmed that the real assailant was Larry Fisher, who was subsequently convicted of the offence. [After Milgaard lived from age 16 to 38 in jail]

...

Recent DNA results eliminated critical hair matches the Crown introduced at Driskell's trial. A fresh investigation also uncovered a number of new facts, including confirmation that a key witness tried to recant his evidence and the revelation that witnesses were paid tens of thousands of dollars in exchange for their testimony.

The Driskell Report was released in February 2007 and concluded that police and prosecutors, through collusion or "careless indifference," made James Driskell a victim of a miscarriage of justice

...

Folland spent three years imprisoned for a 1994 rape. His conviction was overturned in 1999 after DNA tests identified another man as the perpetrator of the crime.

...

Kulaveerasingam Karthiresu of Ontario spent almost seven years in jail for a murder he did not commit. He was exonerated in 2000.

...

Donald Marshall Jr., a Mi'kmag Indian, was sentenced in 1971 at the age of 17 to life imprisonment for the murder of Sandy Seale. He spent 11 years in prison for a crime he did not commit

...

Guy Paul Morin was sentenced in 1992 to life imprisonment for murder. An acquittal was entered by the Ontario Court of Appeal in 1995 as a result of DNA testing.

...

Richard Norris was sentenced in 1980 to 23 months imprisonment for sexual assault. He was acquitted in 1991 after a friend confessed to the crime.

...

Gary Staples of Ontario spent two years in prison for the1969 murder of a Hamilton cab driver, that he did not commit. The police seemed to be stumped until a woman who was facing theft and burglary charges offered to help in exchange for lenient treatment

...

Is that not enough for us to decide that police should be required to follow the law?

FTA

[Wilber]

Is that not enough for us to decide that police should be required to follow the law?

FTA

Still don't understand why none of this applies to CBSA.

[Oleg Bach]

Still don't understand why none of this applies to CBSA.

This broken justice thing that we are all whinning about has a simple explaination. WE assume that the average lawyer or and judge is a highly intelligent moral person...well - hate to break it to you - they are not! It use to be that those from good and noble minded families became lawyers and then noble judges...those days are gone. Now the plumber's son and the butchers daughter...and the carbage collectors nephew are now judges and lawyers...They entered the profession for all the wrong reasons. For social status..for power ( that most can't control) and FOR THE MONEY.. so what do you expect from this lot? JUSTICE? intelligence - social benovolence? Good luck - they are base and the practice not law but self service. Real law makers and givers actually adhered to the principle of public service..those days are gone and what stands now is corruption with a sadistic streak.

[Keepitsimple]

Is that not enough for us to decide that police should be required to follow the law?

FTA

FTA Lawyer.......your arguments are technically quite sound.......and that is at the crux of the problem with our Justice system. There does not seem to be any room for common sense. As usual, the Feeney/Boyle arguments seem to have three sides - proponents, opponents and the truth. This excerpt from Wikipedia tells the story in a concise manner. Common sense dictates that reasonable actions were taken by reasonable people - and waht happened? Well, what happened was that after the fact, judges used technical arguments to destroy the reasonable "in the field" police work to apprehend a murderer. Regardless of the Charter or any technicalities, I cannot see how these actions could have any effect on my freedoms. Infuriating - and deserving of posting in this thread.

Background

On the morning of June 8, 1991, 85 year-old Frank Boyle was found dead in his Likely, British Columbia home from several severe blows to the head with a crowbar. At the scene, the police found a Sportsman brand cigarette, and later found Mr. Boyle's truck abandoned in a ditch. On a tip from local residents, the police located the driver of the truck, Michael Feeney, sleeping in a trailer behind the residence of a friend of his.

The police knocked on the trailer door, and shouted "police", but there was no reply. Guns drawn, the police entered. They found Feeney in bed and shook his leg to get his attention. The police asked him to get up and go outside where the light was better. Upon getting Mr. Feeney outside the police noticed his clothes were covered in blood. They read him his rights, he acknowledged he understood them, and they arrested him.

Upon questioning him, Mr. Feeney said that the blood was from getting hit by a baseball the day before. The police further noted the same brand of cigarettes in the Trailer as was found in Mr. Boyle's house. He was taken to an RCMP detachment, finger printed, made to use a breathalyzer, and for the first day or so was unsuccessful in contacting a lawyer. During this time he was questioned further, admitting he had hit and robbed Boyle. Once a search warrant was obtained, the police found Boyle's stolen property in the trailer. It was only after all of this that he finally met with a lawyer.

At trial in the Supreme Court of British Columbia he was convicted of second degree murder. On appeal the conviction was upheld.

The issue before the Supreme Court was:

whether the police violated section 8 of the Charter during their investigation;

whether the police violated section 10( of the Charter during their investigation;

whether any evidence should be excluded under section 24(2) of the Charter.

The Court held 5 to 4 that section 8 and 10( were violated, thus excluding all evidence gathered as a result of this violation under section 24(2).

[edit] Reasons of the Court

The majority was written by Sopinka J. with Forest, Cory, Iacobucci and Major JJ concurring.

[edit] Section 8

Sopinka first considered the leading case of R. v. Landry [1986] on warrantless arrests in a dwelling, which held that a police officer could only arrest if there are "reasonable and probable grounds" to believe that the person is on the premises, the proper announcement is made before entering, and that the officer reasonably believes that the person has committed or will commit an indictable offence. "Reasonable and probable grounds" must be found on subjective and objective grounds (R. v. Storrey [1990]), however, Sopinka held that there were no such grounds in this situation. The officer had admitted that he didn't think he had proper ground to enter at the time. He then went one step further and held that R. v. Landry is bad law in post-Charter law and that any entry into dwellings must be done with a warrant.

Link: http://en.wikipedia.org/wiki/R._v._Feeney

[Oleg Bach]

Actually it is fundamental to your position. You are asking us to excuse the police for breaking hundreds of years old law that says they can't go into someone's home without a warrant (The SCC cited a case decided in 1604 for that proposition). You tried to assist your argument by saying that the police were following the known legal standard but were hoodwinked by some crazy judge imposing some new rule under the Charter...and that is wrong.

Eliminate the Charter altogether, and the officer committed an illegal arrest and contrary to what you are trying to argue, the courts frowned upon illegal arrests just as much pre-Charter as they do today. We had evidence exclusion rules then too.

Well, the SCC just nixed RCMP using police dogs and armed officers to perform random searches of citizens in bus stations and children in schools and the officer in Feeney testified that he did not have grounds to arrest the guy nor grounds for a warrant and that didn't stop him from pulling his gun and going into Feeney's home now did it?

It's hardly charitable of you not to argue whether it was appropriate...it is 100% clear that it wasn't! The officer himself knew he had no legal authority to enter the trailer but did so anyway! As for the "component of law" you are talking about, we have it...it's s. 24(2) of the Charter.

Charter breaches do not automatically lead to exclusion of evidence. The SCC majority analysis of this point is incredibly lengthy, so follow the link to read it yourself if you want...but here's what I think is the crux of why they ejected the evidence (note...s.10( right to counsel was also completely disregarded by the police in this case):

R. v. Feeney

Of course, you are free to disagree with this analysis...and at home in their living rooms, so can the police. When they are on the job, the police need to follow the law and when they flagrantly ignore 400 years of common law, I don't see why it's not their fault that the accused killer goes free...

And people like you advocating the "so what if the cops don't follow the law or respect citizen's rights" approach are therefore able to be proud of "accomplishing" gross injustices like the 25 or so Canadian cases you can read about on the site of the Assoc. In Defence of the Wrongfully Convicted.

Justice Denied

I suspect not...here's some things from the AIDWYC website that I find to be outrageous and unreasonable...you tell me if I'm way off...

Is that not enough for us to decide that police should be required to follow the law?

FTA

Cops can not enforce law when the law givers do not uphold it. Cops dispise the judicary. Most cops regret becomeing cops once they find out that their masters are not lawful..they feel like suckers.

[guyser]

FTA Lawyer.......your arguments are technically quite sound.......and that is at the crux of the problem with our Justice system. There does not seem to be any room for common sense.

Quite true. A serious lack of common sense by the police . Had they done the job right, the end result would be different.

[Wilber]

Quite true. A serious lack of common sense by the police . Had they done the job right, the end result would be different.

End result was a killer went free and it wasn't the police who turned him lose.