Another loony decision

Renegade · February 13, 2008

Well, I keep being confusing because I'm crossing the two terms "principled" and "practical".
If we were truly principled 100% of the time, then it would not matter at all. If drugs should be excluded because of a serious breach of the law by police entering a home then so should anything else.

In fact, the quote I pulled from the Alberta case says exactly that...don't let the seriousness of what you find operate to excuse what the police did wrong.

What I am saying is, the "principles" and they way they are applied will very likely become more "practical" when a judge is faced with the possibility of a dead body being excluded from evidence as opposed to mere pot plants.

Hopefully I have cleared up my point on that.

On the "leeway" shown to police...you are right there is no hard and fast rule...it is more of an unwritten respect for the job that they have to do. If an officer searches a car before the warrant actually is signed...that's technically illegal.

Under section 24 of the Charter, the results of such a search will almost certainly be allowed...because the warrant was in fact signed and no true harm falls to the accused.

The leeway comes in where the judges in my experience will go out of their way to say that they find no bad faith on the part of the police and that they thank them for their good job (as opposed to reading them the riot act over a simple mistake).

FTA

A very relevant case to this was reported in The Star today: Court allows unjust searches

The Ontario Court of Appeal yesterday approved the use of evidence obtained through flagrant police misconduct, saying any black eye caused to the justice system is outweighed by public interest in prosecuting a serious crime.
In a decision that even one of their fellow judges finds intolerable, a majority of the court upheld a trial judge's decision to admit evidence of 35 kilos of cocaine found in Bradley Harrison's rented SUV – despite the judge's finding an OPP officer had no legal grounds to stop the vehicle, seriously infringed the Toronto man's Charter rights and misled a court while trying to justify his actions.

guyser · February 14, 2008

A very relevant case to this was reported in The Star today: Court allows unjust searches

That is a sad case. Thanks Judges, you are now giving carte blanche to Charter violations.

Judge Cronk is right.

DrGreenthumb · February 14, 2008

I don't know anything about the facts of this case, but police can get express authorization in a search warrant to do a "dynamic entry". That is, if the police have reason to justify not following a knock and announce procedure in a given case, all they have to do is tell that to the authorizing judge and then someone objective can make the decision...not some donkey carrying a machine gun who joined the force to kick ass and take names.
Keep in mind that a search warrant execution on a house is a form of state-sanctioned home-invasion. A home invading criminal with no prior record is looking at 8 years jail simply because of the violation of the security of a person in their home...the exact same conduct with a badge should not be something we routinely allow and should not be decided by a potentially overzealous front-line police officer.

FTA

AMEN! It sickens me how many rights people are willing to give up in the crusade to make sure somebody else doesn't get high. Strip searches, even anal fisting just to make sure that somebody isn't hiding a joint! Allowing cavity searches to search for drugs is like state sanctioned rape. Thank god we have a judicial system that sometimes sees fit to keep the stormtroopers at bay. If it weren't for the wisdom of judges making decisions like this we would be in the full grip of a conservative police state.

Wilber · February 14, 2008

That is a sad case. Thanks Judges, you are now giving carte blanche to Charter violations.
Judge Cronk is right.

Not allowing someone to get away with hauling 77 pounds of cocaine or a hand gun in a high school kids backpack is hardly a carte blanche IMO.

guyser · February 14, 2008

Not allowing someone to get away with hauling 77 pounds of cocaine or a hand gun in a high school kids backpack is hardly a carte blanche IMO.

The precedent is set.

Lets hope it does not, but the pervasive denial of rights is something that is getting out of hand.

Wilber · February 14, 2008

The precedent is set.
Lets hope it does not, but the pervasive denial of rights is something that is getting out of hand.

We managed to avoid being a police state before the Charter, I'm not much concerned about it now. Although it looks a noble document, I have serious questions about who it really protects and I don't think law abiding citizens are at the top of the list.

blueblood · February 15, 2008

We managed to avoid being a police state before the Charter, I'm not much concerned about it now. Although it looks a noble document, I have serious questions about who it really protects and I don't think law abiding citizens are at the top of the list.

Canada was not a police state before the Charter and is not one now. The cops in Canada are in a fishbowl and don't have room to do much of their job. The cops could stop that vehicle for any reason at all, even just to check if the driver has a liscence or not, just remember the cop has to take his case to court and convince a judge if the person he caught is guilty or not. A lot of the time people get immediately released because they have no case.

guyser · February 15, 2008

. The cops could stop that vehicle for any reason at all, even just to check if the driver has a liscence or not,

No they cant, and that is why this cop violated the Charter.

blueblood · February 15, 2008

No they cant, and that is why this cop violated the Charter.

Is the judge going to sit in the cruiser and say no you can't stop the car?

Is the case going to be thrown out because he had a crappy reason to stop the car? Yes

It's all about convincing the judge. That's what court is for, to argue the case after the fact. The cop does not have court going on in his head, he does his job and has to answer for it.

guyser · February 15, 2008

Is the judge going to sit in the cruiser and say no you can't stop the car?
Is the case going to be thrown out because he had a crappy reason to stop the car? Yes

It's all about convincing the judge. That's what court is for, to argue the case after the fact. The cop does not have court going on in his head, he does his job and has to answer for it.

Well, as we have just seen the charge stuck, and it should not have.

The cop should be out of a job. Uphold the laws or get out. It really is simple.

rbacon · February 16, 2008

From what I can see the cops make up law as they go. For example, I have heard the RCMP at Mayerthorpe were illegally on the criminals property without a warrant. A crime in itself. They were apparently trespassing while armed. They were actually criminals themselves. Anybody else heard this?