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CRIMINALS GAIN AND THE PUBLIC LOSES WITH CANADA'S POWERFUL JUDICIARY

By Patrick Brodie, Barrister and Solicitor

This past April, the media, most notably the CBC, was proclaiming the 20th anniversary of the Charter of Rights. The blessings the Charter has supposedly given us were being loudly proclaimed and criticism (if any) was muted. Admittedly, it is worthwhile to take a moment to reflect on the impact the Charter has had on our country, especially in the area of criminal law which is supposed to protect the public. Instead, under our Supreme Court of Canada's rulings, it is the criminals who are receiving the protection. Take for example, the Golden case:

Through his binoculars, Police Officer Theriault could see Ian Golden working in the submarine shop some 70 feet away. But Golden was not making sandwiches, he was selling drugs. Theriault transmitted this to a waiting take-down team. After police apprehended Golden, they moved him to a back area of the restaurant to be searched and to retrieve evidence. The store's patrons were excluded and passers-by would not be able to see what happened.

After being patted down, police pulled down his pants and underwear and noticed some plastic between his buttocks. Golden was not eager to co-operate, and at one point hip-checked an officer so that he almost fell down a flight of stairs. As a result of this strip search, the police retrieved a package which turned out to be cocaine. At trial, it was found that the police had a legitimate right to make the search to preserve evidence for trial.

Golden was convicted, a conviction that was upheld by the Ontario Court of Appeal. When his appeal reached the Supreme Court of Canada, the simple issue became who had acted improperly, the cocaine dealer or the police?

On 6 December, 2001 by a one-vote majority, the Supreme Court ruled that it was the police.

As in so many cases before the Courts, the issue was not determined by an interpretation of legal principles but on the judge's view of right and wrong. The judges speaking for the majority, Justices Arbour and Iacobucci, revealed their own distaste for these searches, which they termed a "serious infringement of privacy and personal dignity."

For example, they noted that strip searches were used disproportionately against visible minorities, and were for that reason suspect.

It was their personal view that a strip search such as this "disregards or compromises his or her physical and psychological integrity and safety," and was, therefore, unconstitutional. The judges went even further, and laid out projected policy considerations. In the future, similar searches would have to be authorized by a senior officer, be conducted by an officer of the same sex and be carried out in private facilities. In effect, they created a new rule: in the absence of extraordinary circumstances, all strip searches would have to be conducted at a police station. The judges, not Parliament, would set the rules on how and when the police would do their duty.

This brave new world of Charter review has an Alice in Wonderland quality to it. Not only were the police found to be in the wrong and the search unconstitutional, the Court ordered that Ian Golden, whom everyone knew to be a drug dealer who fought off police and tried to keep them from finding proof of his guilt, should be acquitted. By virtue of the Charter of Rights, the palpably guilty are deemed to be innocent.

There are echoes of the infamous Feeney decision in the Golden case. In 1991, Michael Feeney had broken into the house of an 86-year old recluse, Frank Boyle, beat him on the head with a crow bar and stole a small amount of cash and a truck. Neighbours had seen Feeney walk away from an accident involving Frank Boyle's truck, and they alerted RCMP officers who tracked him down. They knocked on his door and identified themselves as police. There was no response. The police then entered the trailer and discovered Feeney, his shirt still splattered with his victim's blood, asleep. The physical evidence was conclusive and Feeney eventually confessed.

However, in 1997, the Supreme Court of Canada quashed his conviction, ruling that the police did not have reasonable grounds to arrest Feeney, and that all evidence derived from his arrest was to be ignored. There had been an "unconstitutional entry" stated Justice Sopinka which was "antithetical to the privacy interests protected by the Charter."

There was no recognition of the fact that if the RCMP officers had sat back and waited for a search warrant, the process could have taken hours. There had been a savage attack on an elderly man and the police had moved quickly to protect the community from the killer and to gather evidence for trial. But they were wrong.

This decision, as in most Charter matters, was not the strict application of legal principles. Rather, it involved the balancing of the judge's private views of right and wrong. To the judges, there was a degree of sanctity behind the right to privacy and the legalities of obtaining a search warrant. Since law school, they had been instructed on the enormity of these rights above all others. And these sacred prerogatives overrode the right of the public to have a police force able to face an emergency situation and act immediately. As Justice Sopinka concluded, "Any price to society occasioned by the loss of such a conviction is fully justified in a free and democratic society."

Would the majority of Canadians agree? Would the family of Frank Boyle agree?

In the case of Ian Golden, the cocaine dealer, The Supreme Court effectively adopted, as the law of Canada, the 1984 English statute on police and criminal evidence which mandated that searches be conducted in police stations. But the English law was passed after wide consultation and the approval of Parliament. No input from police or victims' groups was obtained before the Canadian Supreme Court took it upon themselves to make this major change in the criminal law. This drastic step worried one of the dissenting judges, Michel Bastarache who felt that "it is clearly excessive to adopt foreign legislation to reinvent the common-law rule in Canada," and that such an alteration "should be left to Parliament." Yet, the majority had no such qualms. They had the power to reinvent the law on searches and they did so.

The 20th anniversary of the Charter is by no means a cause to celebrate. The Charter has, without doubt, created a profoundly anti-democratic trend that is stripping Parliament of its rightful prerogatives and leaving a Supreme Court, one whose decisions are increasingly seen as extreme and out of touch, as the ultimate decision maker. Do we not have a right to ask, what is the cost in freedom of such a powerful judiciary?

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