Law Times

LAW TIMES / JUNE 2, 2008 FOCUS PAGE 13 Lawyers biting nails waiting for SCC ruling BY GRETCHEN DRUMMIE Law Times Court of Canada deals with cases that involve the use of evidence obtained despite seri- ous Charter breaches, William Trudell tells Law Times. In April the SCC heard R. C v. Grant, and in February a notice of appeal was filed in R. v. Harrison. The court has just granted an extension of time to file material until July in the Harrison case. Both are being watched closely, says Trudell, president of the Canadian Council of Criminal Defence Lawyers. "The criminal justice system is looking to Ottawa to see what they're gong to do with obvious pretext stops or searches that offend the Charter," he says. "Right now it seems there's some nailbiting going on be- Evidence regularly admitted Continued from page 10 But he suggests e-mail as the next best choice to a phone call. "My e-mail at the office comes directly into my BlackBerry, and I've got it on me at 11 p.m., and it vibrates right beside my bed. I'm not the only one; many of us are addicted to these things . . . People are more accessible be- cause of this technology, and we should use it." Neuberger has yet to receive such an e-mail. In fact, he reveals that some officers he cross-examines admit they don't have the capability of going on the internet or sending out e-mail at the particular loca- tion where they are. Meanwhile, Neuberger thinks, "we have to be very vigilant about protecting these rights, and in particular the right to counsel of choice, and appeal every time that there is an adverse ruling on it. "We should be appealing and trying to distinguish this from other cases where there are more live and serious issues, like a gun. I just think there is a difference when you have somebody give a body sample, as opposed to real evidence which may be indepen- dent, which may be ultimately dis- coverable by a search warrant. I see it as different than forcing some- body to give a sample without hav- ing the opportunity to even try to contact counsel of choice. I think the principal of trying to speak to your own lawyer is exceptionally important, and we have to try and protect that right even in the face of trends to the contrary now," says Neuberger. "The ends don't justify the means, and if we sanction this es- sentially by admitting evidence, we may not help investigations; we may hurt them in the long run, and certainly cause detriment to our personal rights." LT www.lawtimesnews.com Criminal Spectrum (LT 1-2x4).indd 1 5/28/08 9:03:42 AM Starting from $49 /month (for one year) Finally, an online service as unique as you are "Criminal Spectrum is a very easy to use service! 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Choose what you want Essential Edition • Select Edition • Classic Edition • Premiere Edition For a FREE product demo contact your Account Manager at: 1.800.263.2037 • 1.800.263.3269 • www.canadalawbook.ca Canada Law Book is A Division of The Cartwright Group Ltd. riminal lawyers are "holding their breath" to see how the Supreme cause the shift seems to be to allow it [the evidence] in, and I think we have to get back to a principled approach." Donnohue Grant, 18, was confronted by a Toronto Police officer on a street in broad daylight and asked if he "had anything on him that he shouldn't." He admitted to having some marijuana and a gun, and police arrested and searched him. They seized a loaded revolver and drugs. He was convicted at trial and sen- tenced to 18 months. The On- tario Court of Appeal found that Grant's right not to be arbitrarily detained was in- fringed, but not enough to de- fame the system and thus the gun was properly admitted. In the other case, Brad- ley Harrison was pulled over without cause and found in possession of 35 kilograms of cocaine with a street value of over $2.4-million. The trial judge turned down an appli- cation to exclude evidence re- lating to seizure of the drug, despite recognizing Harrison's rights were violated. Harrison also appealed but the majority found the trial judge was correct in deter- mining the breaches were not "sufficiently serious to warrant excluding the evidence." Justice Eleanore Cronk dissented, finding the viola- tions were "intentional," and the officer searched Harrison's car knowing he lacked prob- able grounds and "misled the court" in explaining it. "While it is always dis- tasteful to exclude important and reliable evidence in a seri- ous case such as this, reason- able and informed members of the community would not countenance this type of po- lice misconduct," said Cronk. "To admit the evidence of the cocaine, on this record, would strike at the heart of the values enshrined in the Charter." Trudell says, "In another cli- mate, Madam Justice Cronk's dissent would be accepted and simply right . . . It was a pretext stop, clearly a serious breach, and in any other environment you would think no matter how serious the case is on its merit, it would have been tossed." But her dissent "seems courageous in the climate in which we're living." He says that a year from now "it's either going to be a really different climate, or it's going to be a balance cli- mate. I think the balance has shifted, and that's what we're concerned about." The scale has tipped, he says, toward "allowing the evidence in. So the fruit of the poisoned tree has gone to market right now . . . It's a very conservative interpreta- tion from our Court of Appeal, and so I really was impressed by Madam Justice Cronk's dissent and I hope that carries the day with the Supreme Court." He notes the trend is a "real issue going on right now, a real concern, and the Supreme Court of Canada is going to have to address it." Trudell adds there's "a con- cern about serious criminal cases," and notes the large amount of cocaine in Harri- son for example. "The public would think, 'Oh my God, how could a procedural point keep the evidence out?'" But, he says that, of course, the "sweetness of the criminal justice system is the procedural protections. If you don't have any procedural protections then obviously we're living in a state that we don't want to even think about." He hopes in the end there will be a "real balance. I think the Charter is worth preserv- ing and protecting and I really think that some of these cases make it meaningless or risk it becoming meaningless, that would be a mistake." and LT

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