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www.lawtimesnews.com Page 2 March 10, 2008 / Law TiMes Sears in Vancouver. "A rookie officer in a remote community might use the provision to tap phones and not report this to anyone. How do we know this does not happen?" asks Buck. In his ruling, Davies notes the section does not address situ- ations where police may have erred in the decision to inter- cept private communications, or where they intercepted more communications than were nec- essary, or in circumstances that did not result in a prosecution. "In any or all of those cir- cumstances, the police would be answerable to no one," writes the judge. "As with the failure to require notification of those in- tercepted of the fact of an inter- ception, the lack of any reporting requirement undermines both constitutionality and police ac- countability," he said. The definition of "peace of- ficer" in this section of the code includes not only police officers but customs officials, fishery guardians, the reeve of a com- munity, and many other public officials. "It is difficult to envis- age the type of exigency that would require the implemen- tation of s. 184.4 of the code by many of those who are de- fined as peace officers," the judge observed. While the evidence from police suggested that only senior officers were permitted to make use of the powers, the section "does not mandate internal approval or supervision," says Davies. The judge stayed his declara- tion of invalidity for at least 18 months, to give Parliament time to correct the legislation. The at- torney general of Canada may also apply to extend the stay pe- riod. The RCMP and provincial and federal Crowns have all said they are reviewing the decision. Davies made a number of suggestions to make the section constitutional, including limit- ing the interception of commu- nications to those between the "perpetrator" of the anticipated serious harm and the intended victim. He also called for report- ing requirements on the use of this power. The judge declined a request by the Crown to read into the section the provisions necessary to cure its "constitutional defi- ciencies." "The appropriate forum for the resolution of such con- cerns must be Parliament," said Davies. A Crown appeal is unneces- sary, says Buck, given the sugges- tions included in the ruling. "Any prudent lawmaker would simply make the changes to en- sure constitutional compliance rather than appeal on principle. I think the public would welcome that approach," says Buck. NEWS Mountie ruling could 'chill' judicial independence "unequivocally indicate" a par- ticular characterization of either of the shots, the Supreme Court said. The judge also developed a theory, outside of the jury's verdict and contrary to the evi- dence, that the second shot was "instantaneous and instinctive, the virtually automatic result of his police training," the Supreme Court ruling says. Because of that theory, the judge found Ferguson was not acting in anger when he fired the second shot. "This finding was critical to the trial judge's conclusion that the minimum sentence of four years prescribed by s. 236(a) of the Criminal Code constituted cruel and unusual punishment, violating s. 12 of the Charter," McLachlin writes. But, if the second shot was instantaneous and instinctive, it would have to have been a con- tinuation of the first shot, her ruling continues. "Had the trial judge found that the second shot was in- stantaneous and instinctive, he should have considered the two shots together as a single trans- action, and would have been required by the jury's verdict to hold that this transaction, in its entirety, did not constitute self- defence," she writes. McLachlin adds the "in- stinctive" explanation did not "sit comfortably" with uncon- tradicted evidence about the circumstances of the shootings, namely the three-second time gap between the two shots that was estimated by both the book- ing officer and the other inmate, Herman No Chief. "This was not a case of im- mediately successive shots," writes McLachlin, adding that conclusion was supported by the fact Const. Ferguson's firearm did not permit rapid, automatic second shots. "I conclude that there is no basis for concluding that the four-year minimum sen- tence prescribed by Parliament amounts to cruel and unusual punishment on the facts of this case," she adds. The other main arguments in the Supreme Court decision dealt with the judge's applica- tion of Charter s. 24(1), a little- known clause that allows anyone whose Charter rights have been infringed or denied to obtain "such remedy as the court con- siders appropriate and just in the circumstances." It is likely the most pertinent part of the decision for future cases involving mandatory mini- mum sentences. The trial judge used the clause to avert the mandatory minimum for Ferguson, without having to strike down the Criminal Code section that carries the penalty, once he concluded the four-year minimum violated the Charter. McLachlin writes it was not necessary to address the judge's use of 24(1) — called a consti- tutional exemption — since she had already found the trial judge incorrectly concluded the sen- tence contravened the Charter in Ferguson's case. But she notes there has been "considerable debate and dis- agreement" in lower courts about whether the remedy of a consti- tutional exemption under the clause is available. "The matter having been fully argued, it is ap- propriate to settle the question of whether a constitutional exemp- tion would have been available to Const. Ferguson, had the mini- mum sentence violated s. 12 of the Charter," she writes. In the remaining 17 pages of her 37-page ruling, Justice McLachlin concludes the answer was negative. "Section 24(1) has been gen- erally seen — at least until now — as providing a case-by-case remedy for unconstitutional acts of government agents operat- ing under lawful schemes whose constitutionality is not chal- lenged," she writes. McLachlin notes the other remedy, s. 52(1) of the Constitu- tion Act, offers no discretion to judges. If a law is found in viola- tion of the Charter, s. 52(1) au- tomatically renders it "null and void" — the normal route when Charter violations are found. She says precedents suggest "a cautionary note" should be taken with the use of constitutional ex- emptions. They lead to an uneven playing field for the accused, with each case up to individual judges, and interfere with the actions of Parliaments that pass laws with mandatory minimum penalties, McLachlin says. "In this case, the effect of granting a constitutional exemp- tion would be to so change the legislation as to create something different in nature from what Par- liament intended," she writes. "It follows that a constitutional ex- emption should not be granted." Even though the ruling might not affect Charter appeals in sub- sequent cases involving manda- tory minimum sentences, anoth- er leading Ottawa lawyer says it could sway the minds of judges. The ruling could have a "chilling effect" on the concept of judicial independence, de- fence counsel Heather Perkins- McVey tells Law Times. Position – Richmond Hill, ON Chief Deputy General Counsel The Chief Deputy General Counsel will provide legal support for all corporate law matters, includ- ing securities and regulatory compliance, corporate governance, public disclosure and fi lings, share- holder matters, mergers and acquisitions, com- pany-wide corporate policies and coordination of support for corporate legal matters for Open Text's various global subsidiaries. The CDGC will also serve as Assistant Corporate Secretary to the Board of Directors and its committees. recruiting@opentext.com or visit www.opentext.com and go to the Careers section. For more information regarding this opportunity or to apply to this position, please send your resume to jobsinlaw jobsinlaw Continued from page 1 LT Parliament has 18 months to correct legislation Continued from page 1 LT it's weekly e-news! it's fresh. it's free. F r o m t h e e d i t o r s o F C a n a d i a n L a w y e r a n d L a w t i m e s s i g n u p t o d a y a t w w w. c a n a d i a n l a w y e r m a g . c o m C A N A D I A N L E G A L N E W S W I R E *Page 1-16.indd 2 7/18/08 12:49:27 PM

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