Law Times

Law Times • December 1, 2008 Sky not falling on Charter, says fed Crown NEWS BY SHANNON KARI For Law Times he federal Crown is downplaying concerns about the impact of judges admitting evidence de- spite serious Charter breaches in its written arguments for a closely watched case to be heard this month by the Supreme Court of Canada. "The sky is not falling," write T James Martin and Rick Visca on behalf of the Public Prosecution Service of Canada in its factum filed in R. v. Harrison. "There is no new Harrison test and there is no new alarming pattern. The sky is intact," they suggest. The Supreme Court will hear arguments on Dec. 9 in an appeal by Bradley Harrison of his trafficking conviction that was upheld in February by the Ontario Court of Appeal in a 2-1 decision. Harrison was driving a rental "The approach to s. 24(2) endorsed by the majority re- duces all constitutional breach- es involving narcotics to a ques- tion of the quantity and type of narcotic," she wrote. In response, the federal Crown stresses that there is no automatic exclusionary rule under s. 24(2). "In the context of an inquiry where unlawfully obtained evi- dence is prima facie admissible," it is not improper to admit the evidence when the allegations are very serious, state Mr. Martin and Mr. Visca. They argue that the "lone ac- tions of one officer who makes a bad faith decision," may "mili- tate against" the seriousness of the Charter violation. The Crown notes the amount of cocaine found by the of- ficer in Harrison and says the "reasonable member" of the community would be offended if this evidence was excluded. "The truth-finding function of the criminal justice system is not to be relegated to an afterthought in the s. 24(2) equation," the federal Crown argues. LT ome legal experts have suggested after Harrison that the bar is now set too high, and tainted evidence of hard drugs or guns seized as a result of Charter violations will almost never be excluded. In her factum, Marie Henein argues that there has been an "alarming pattern" where the seriousness of the offence is the main factor considered by courts in its 24(2) analysis. The federal Crown points to two recent Ontario decisions as sup- port for its view there has been no new ap- plication of the 24(2) test. S vehicle with a friend from Van- couver to Toronto when he was stopped by an officer near Kirk- land Lake in northeastern On- tario for not having a front li- cence plate. The officer was also suspicious because Harrison was not exceeding the speed limit. The officer admitted that the vehicle did not require a front plate because it was licensed in Alberta. A vehicle search was conducted, even though there were no legal grounds. More than 35 kilograms of cocaine were found in boxes in the vehicle. R. v. Basset — Windsor police staged a high-risk takedown of a suspect in a taxi, as a result of a tip from a confidential informant. Bar too high for exclusion? Many officers were armed, one was bran- dishing a submachine gun, noted the judge. A duffel bag was seized and a handgun was found inside. The tip that the suspect "possibly" had a gun was given to an officer two days before police decided to take any action. "The argument that the police were acting in good faith would be much more compelling if there had been a prompt and diligent response to the tip," noted Superior Court Justice Renee Po- merance in her ruling excluding the evidence. R. v. White — Superior Court Justice Bonnie Wein excluded evidence of a seizure of 130 grams of crack cocaine and 15 grams of powdered cocaine as a result of the actions of Peel Regional Police. Two officers pulled over a suspect in a high drug trafficking area in Mississauga based on a confidential informant's tip they would find a black male in possession of crack cocaine in a gold Lincoln SUV with a white female passenger. The officers pulled over a silver Lincoln SUV without any further investigation, based on the fact a "non-white" driver was in the vehicle with a white woman. "The stop was precipitous. It was much more so because the police neglected to confirm even the brief description of the driver as given and where satisfied to proceed simply on noting that he was non-white," wrote Wein. "That aspect makes the breach contextually more serious," she added. — Shannon Kari LT PAGE 5 Practical hands-on solutions to the complex issues of commercial leasing The officer's explanations for stopping the vehicle were de- scribed as "contrived and defy credibility," by the trial judge, who concluded these were seri- ous Charter violations. The co- caine was admitted under s. 24 (2) of the Charter. In the majority decision of the Court of Appeal, Justices Dennis O'Connor and James MacPherson concluded that the amount of cocaine that was seized was more significant when considering the impact on the administration of justice. Justice Eleanore Cronk was critical of her colleagues and suggested they were improperly trying to minimize the miscon- duct by the officer. The approach to the s. 24(2) Editor-in-Chief: Harvey M. Haber, Q.C., LSM with numerous leading experts as contributors The long awaited new edition of a classic text Take advantage of the reliable and up-to-date guidance of Canada's top commercial leasing practitioners of the day with Shopping Centre Leases, Second Edition! This collection of updated as well as new articles and precedents covers all aspect of commercial leasing: • Technology and Telecommunications Concerns Insurance for Shopping Centres • Leasing Aspects of the Franchise Relationship • Transfers of Lease, Assigning, Subletting and Change of Control • Operating Costs and other Additional Rents in a Commercial Lease from a Landlord's and • Tenant's Perspective Agreements to Lease, Letters of Intent and Term Sheets Charter analysis conducted by the majority in the Court of Appeal was "inconsistent" with Supreme Court jurisprudence, argues Harrison's lawyer Marie Henein, in her factum. "The inquiry under s. 24(2) is not a question of whose con- duct is worse, the police or the accused. The effect of this ap- proach is that the seriousness of the offence will virtually trump all other considerations even in the face of a finding of flagrant disregard for consti- tutional rights. An individual accused of a crime will always lose such a popularity contest," writes Henein. the Court of Appeal in the third prong of the Collins test will effectively result in a Charter with different applications for different narcotics, suggests the Toronto defence lawyer. The analysis conducted by www.lawtimesnews.com Haber_shopping centre(LT 1-2x4).indd 1 11/26/08 2:43:21 PM This resource includes numerous precedents to help you draft your own agreements and a table of cases to help you locate the decision you need. Shopping Centre Leases - considered the definitive resource on the subject since its inception in 1976 Now updated, revised and renewed to bring you the same powerful guidance today. Order your copy today! P/C 0279010002 • ISBN 978-0-88804-477-8 Hardbound • 1,108 pp. December 2008 • $185 • Pandemic Preparedness for Building Owners and Managers •

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