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NEWS > 18 February 2008

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For Police Involved in Fatal S
The decision by four of the five police officers involved in the killing of an unarmed Queens man to voluntarily speak to prosecutors, giving investigators their version of events for the first time, poses certain risks for both sides, lawyers and legal experts say.

By voluntarily talking with prosecutors, officers can often try to gain points as well as offer insights into their state of mind during a shooting, the experts said. The biggest risk to a police officer, however, is that once he tells a story, he is married to it and can only change it later at his peril. Prosecutors ca... Read more

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Toronto Star - Ontario, Canada
18 February 2008
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Canada: Slippery slope in cour

When does credible evidence of a serious crime become so tainted by police misconduct that it should be tossed out of court?

That was the central question before the Ontario Court of Appeal in a controversial decision last week that pits society's interests in prosecuting crimes – in this case, trafficking of a large quantity of cocaine – against the constitutional right of individuals to be free from unreasonable searches and arbitrary detention.

The case revolves around Bradley Harrison, who along with a friend was pulled over by OPP Constable Brian Bertoncello while driving near Kirkland Lake in 2004. At trial, Bertoncello said he decided to stop Harrison's SUV because it was missing a front licence plate, even though he quickly realized the vehicle was registered in Alberta, where front plates aren't required. He also said Harrison was not driving in excess of the speed limit.

What was Bertoncello's reason for nonetheless stopping a driver who apparently was doing nothing wrong? He had turned his emergency lights on, and felt it would reflect badly on his "integrity" if he didn't follow through.

Despite the fact he had no reason to stop Harrison in the first place, Bertoncello ran his name through a police database and discovered his driver's licence had been suspended. Bertoncello arrested Harrison and then told him he was going to search the SUV for his licence. But ignoring the most obvious place to look – jackets and clothes on the back seat where the licence was eventually found – Bertoncello went straight for two sealed banker's boxes he had noticed in the rear cargo compartment. Inside, he found 35 kilograms of cocaine, with an estimated street value of between $2.4 million and $4.6 million.

At trial, the judge ruled Bertoncello had clearly breached Harrison's Charter rights. The judge found the reasons Bertoncello gave in court for stopping the SUV "contrived," his explanation for the search "somewhat incredible," and his conduct "brazen and flagrant." Although the trial judge found the violations to the Charter of Rights to be "extremely serious," he nevertheless admitted the cocaine as evidence on the ground that the constitutional breaches "pale in comparison" to the alleged crime. Harrison was convicted of trafficking.

In a 2-to-1 decision this week, the Court of Appeal upheld the lower court's decision to admit the cocaine into evidence. In the majority judgment, Associate Chief Justice Dennis O'Connor and Justice James MacPherson found that the Charter breaches committed by the officer, while serious, were not "egregious." They also argued that "a reasonable member of the community could very well find that excluding from evidence such a large quantity of drugs as a result of the police action in this case would bring the administration of justice into greater disrepute than admitting the seized narcotics."

Society has a strong interest in keeping cocaine off the streets. But it also has a strong interest in ensuring police do not abuse their considerable powers, no matter how desirable the outcome.

In upholding the trial judge's decision to admit evidence obtained through deliberate police misconduct, O'Connor and MacPherson have sent a troubling message that courts can overlook flagrant Charter breaches by police officers if an offence is serious enough and the evidence reliable.

The logical extension of this ruling that the police will henceforth feel less inhibited about compromising the Charter rights of suspects.

A strong dissenting opinion from Justice Eleanore Cronk is more convincing to us. Cronk argued that her two judicial colleagues unduly minimized the seriousness of Bertoncello's misconduct. She also concluded that "where the evidence was obtained as a result of serious and deliberate police misconduct ... respect for the values enshrined in the Charter must take precedence and the court must dissociate itself from such misconduct."

Under the circumstances, Cronk concluded, admitting the tainted evidence would bring greater disrepute to the justice system than excluding it. "To hold otherwise, on the facts and in the circumstances of this case, would invite the disregard of Charter rights by the police, with an unspoken `assurance of impunity,'" she wrote.

No one likes to see criminals walk free. And there may be cases where evidence should be admitted, despite inadvertent or minor violations of a suspect's Charter rights by police. But where police have flagrantly violated the Charter in the gathering of evidence, the ends should not be allowed to justify the means.

 

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