Law Times

July 27, 2009

The premier weekly newspaper for the legal profession in Ontario

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July 27/August 3, 2009 uthrie_LT_June29_09.indd 1 SCC tosses $4-million cocaine seizure New test for tainted evidence T BY ROBERT TODD Law Times he Supreme Court of Canada has laid down new guidelines for judges dealing with tainted evidence, but exactly how the rulings in four companion cas- es will impact criminal accused remains to be seen. Sack Goldblatt Mitchell LLP lawyer Jonathan Dawe, who represented the intervener Canadian Civil Liberties Asso- ciation in R. v. Harrison, says he was "heartened" by the court's decision in that case. "We were very concerned about the idea that deliberate and fl agrant police misconduct could be essentially trumped by the se- riousness of the off ence," he says. "Th e court's very clearly said that's not the case — that intentional violations of the Charter have very serious implications for the repute of the administration of justice." Queen's University law Prof. rights. Th is disregard for Charter rights was aggravated by the offi - cer's misleading testimony at trial. Th e police conduct was serious, and not lightly to be condoned." She went on to comment, "In summary, the price paid by soci- ety for an acquittal in these cir- cumstances is outweighed by the importance of maintaining Char- ter standards. Th at being the case, the admission of the cocaine into evidence would bring the admin- istration of justice into disrepute. It should have been excluded." In ruling on Harrison, the Jonathan Dawe, who represented the Canadian Civil Liberties Association, which intervened in R. v. Harrison, says he's 'heartened' by the decision. Donald Stuart, who represented CCLA as inter- vener in R. v. Grant, says, "I think the Supreme Court should be congratulated for coming up with a new criteria and whole new regime." He adds, "I think it's quite an imaginative judgment and it recognizes that there have been problems in both of these areas, and the court's spent a lot of time and taken a lot of care in trying to come up with criterion that are more sensible and more workable." While the court ruled in three of the four cases to permit illegally obtained evidence, it also threw out a $4-million cocaine seizure in Harrison. In acquitting Bradley Harrison, Chief Justice Bev- erley McLachlin wrote, "In sum, the conduct of the police that led to the Charter breaches in this case represented a blatant disregard for Charter court applied the new framework it set out in the companion case of Grant. Th ere it was asserted that judges must consider three factors when deciding whether to admit evidence that could bring the administration of jus- tice into disrepute: the serious- ness of the Charter-infringing state conduct; the impact of the breach on the Charter-protect- ed interests of the accused; and society's interest in the adjudi- cation of the case on its merits. "Th e fact that a Charter breach is less hei- nous than the off ence charged does not ad- vance the inquiry mandated by s. 24.2. We expect police to adhere to higher standards than alleged criminals," wrote McLachlin. "In summary, the price paid by society for an See Grant, page 5 Jury vetting inquiries getting more complex BY TIM NAUMETZ For Law Times OTTAWA — Th e controversial issue of Ontario Crown prosecu- tors secretly using information from police sources to help them vet jurors has grown even more complex. Law Times has discovered through a review of federal gov- ernment appointments to the Ontario Superior Court of Justice that three Ontario lawyers named to the bench were Crown attor- neys in Barrie either at the time of their appointment or earlier. Barrie and the surrounding region are ground zero in in- quiries that have been launched by the province's privacy com- missioner and Attorney General Chris Bentley to determine how extensive the jury-vetting prac- tice has been. Undisclosed use of police in- formation by Crown attorneys in Barrie led to a mistrial and the dismissal of a jury in a murder case. Another mistrial was sub- sequently declared when similar even aware of it taking place. Greg Goulin, one of the de- fence lawyers in the Windsor trial, where two defendants are being tried on murder charges, says the fact that three for- mer Barrie Crown attorneys have been named to the bench My view is it's early days to be drawing conclusions, until we hear what the position is, what the evidence shows. TitlePlus_LT_Mar9_09 2/27/09 11:23 AM Page 1 information came to light in a Windsor murder trial. A spokesman for Bentley de- clined to respond to questions about the federal appointments of three former Barrie Crowns, and it is unknown whether the three new judges on the Superior Court took part in jury vetting or were by Prime Minister Stephen Harper's government could complicate Bentley's inquiry. It could also aff ect Privacy Commissioner Ann Cavoukian's separate investigation into jury vetting, because the former pros- ecutors are now sitting judges. 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TitlePLUS policies issued with respect to properties in Québec and OwnerEXPRESS® policies do not include legal services coverage. ® least a year before the National Post reported in May that the undis- closed jury vetting had occurred. Th e head of the Ontario Criminal Lawyers' Association declined to comment on the sig- nifi cance of the appointments, since it is unknown whether the three judges were aware of jury vetting or took part. "I keep saying this to people; Bentley has not made any disclo- sure yet," says association presi- dent Frank Addario. "My view is it's early days to be drawing conclusions, until we hear what the position is, what the evidence shows," says Addario. Attempts to reach the judges were unsuccessful. Meanwhile, Brendan Crawley, a spokesman for Bentley, says the See AG statement, page 5 6/23/09 9:45:57 AM www.lawtimesnews.com

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