TranceAddict Forums (www.tranceaddict.com/forums)
- Canada - Toronto & Southern Ont.
-- WTF - Court allows illegal search
Pages (3): [1] 2 3 »

WTF - Court allows illegal search

From this morning's Toronto Star. WTF?

Copyright 2008 Toronto Star Newspapers, Ltd.
The Toronto Star

February 13, 2008 Wednesday

SECTION: NEWS; Pg. A01

LENGTH: 818 words

HEADLINE: Crime fight justifies Charter violations in cocaine bust, appeal judges rule

BYLINE: Tracey Tyler, Toronto Star

BODY:


The Ontario Court of Appeal yesterday approved the use of evidence obtained through flagrant police misconduct, saying any black eye caused to the justice system is outweighed by public interest in prosecuting a serious crime.

In a decision that even one of their fellow judges finds intolerable, a majority of the court upheld a trial judge's decision to admit evidence of 35 kilos of cocaine found in Bradley Harrison's rented SUV - despite the judge's finding an OPP officer had no legal grounds to stop the vehicle, seriously infringed the Toronto man's Charter rights and misled a court while trying to justify his actions.

The 2-1 ruling is the latest in a line of recent decisions in which the court has been accused of weakening Charter protections by refusing to exclude evidence obtained unlawfully. In a case last fall involving a gun found in a backpack at Westview Centennial Secondary School, the court said throwing out reliable evidence because of Charter violations must be balanced against public concerns about escalating gun violence.

In their judgment yesterday, Associate Chief Justice Dennis O'Connor and Justice James MacPherson rejected defence lawyer Marie Henein's contention that admitting the evidence obtained in violation of Harrison's Charter rights would mean the judiciary is condoning police misconduct.

In weighing what's worse - admitting tainted evidence or allowing serious crime to go unpunished - the majority concluded the public, at least in this case, is willing to put up with the significant Charter violations committed by OPP Constable Brian Bertoncello.

"We do not suggest that this is an easy case - far from it," they wrote. "This is a close call ..."

"We believe that, without minimizing the seriousness of the police officer's conduct or in any way condoning it, it was open to the trial judge to find that reasonable members of the community could well conclude that the exclusion of 77 pounds of cocaine, with a street value of several millions of dollars, and the potential to cause serious grief and misery to many, would bring the administration of justice into greater disrepute than would its admission," O'Connor and MacPherson said in their decision.

Bertoncello's misconduct didn't result from any systemic problem, OPP policy or directions from a senior officer, which reduces the seriousness of the breaches of Harrison's rights, they said.

But in a sharply worded dissent, Justice Eleanore Cronk accused the majority of hiding behind a "shield" of deference often accorded to trial judges by appeal courts. Except, in this case, O'Connor and MacPherson aren't really yielding to Justice Norman Karam's conclusions, Cronk charged. In reality, they're spinning or minimizing the trial judge's findings, to make Bertoncello's misconduct seem far less serious than it was, she suggested.

"I do not accept that police misconduct is reduced to constitutional insignificance, or that its effects are minor or de minimus, because only one police officer, acting on his own, knowingly violates a citizen's constitutional rights,' said Cronk.

"The protections afforded by the Charter are not limited to cases where systemic, institutional or premeditated police misconduct or state action is in issue," she said.

Alan Young, a professor at Osgoode Hall Law School, said by assessing police conduct to see if Charter violations stem from any systemic failings, the court has now "set the bar so high" that exclusion of tainted evidence "will be a rarity."

"There's no question that this court and other courts are losing interest in the whole enterprise of excluding evidence," he said.

Harrison, accompanied by a friend named Sean Friesen, was driving from Vancouver to Toronto when he was stopped near Kirkland Lake in October 2004. Bertoncello said he decided to pull over the SUV because it was missing a front licence plate, though he knew a front plate wasn't required in Alberta, where it was licensed.

Bertoncello testified he went ahead and pulled the SUV over because the emergency lights on his cruiser were flashing and cars were behind him, he felt his "integrity" as a police officer was on the line.

Harrison couldn't produce a driver's licence, but gave Bertoncello his name and address. Running them through a computer, the officer discovered Harrison's licence was suspended, and arrested him.

Bertoncello then began a vehicle search, though he had no legal grounds for doing so. He claimed he was looking for Harrison's licence, but the court was told he didn't bother looking through clothes on the back seat. He went directly for two boxes at the back, asking, the men if there were any drugs inside, again without grounds for doing so.

Bertoncello the officer testified he asked the question for "personal safety" reasons - he didn't want to get pricked by a needle or accidentally pull the trigger of a gun. Inside the boxes were bricks of cocaine.

This is a good bust for the police, but for the Canadian Judicial system to bend the law saying that it's OK to perform an illegal search is quite frightening. I'm indifferent about this decision... Letting a guy go along with 35 keys of coke vs the judges bending the law... hmmm.....

Its a tough call when you weigh the issue of whether or not he should have been let go based on the illegal search. I personally feel that they were right to retain the evidence as admissible in this case. However, its a slippery slope now; if police don't feel they have a reason to refrain from spontaneous and unlawful searches, how many of us are now going to be subject to such random violations of our freedoms?

Scary prospects.

I think its retarded that people can basically get away with murder because the police happened to find the murder weapon through an unlawful search or something....

I see this as a step forward

Go ahead, keep taking away all our rights.

Who cares about rights, the ends justify the means. Right! Why don't they just arrange it so the cop can shot you on sight if he believes you are guilty? Judge, jury and executioner. Sounds good to me! ... sarcasm... We would save a lot of money on court time and judges etc.

quote:

Originally posted by teufel-man I think its retarded that people can basically get away with murder because the police happened to find the murder weapon through an unlawful search or something.... I see this as a step forward

I totally agree with you on this one, but just for argument sakes the police has a set procedure for everything, they have to do everything according to the law, if they can get away with this what else can they get away with?

My suggestion is to make an amendment to the charter of rights to allow the search, cause if you got nothing to hide then you wouldn't mind a search, and it benefits the public as a whole. (A lil like U.S. Patriot Act, kinda)

So let me get this straight... it's okay to violate someone's rights if we discover, after the fact, that they were breaking a law? In otherwords the charter does not apply to persons that may be involved in a criminal enterprise? So what about the right to security of the person...

quote:

Originally posted by teufel-man I think its retarded that people can basically get away with murder because the police happened to find the murder weapon through an unlawful search or something.... I see this as a step forward

The problem with this logic is that once you remove these barriers then the police can search anyone at any time with no provocation... afterall, if you stop 10000 cars and search them on the 401 any given day you're probably going to catch a few people breaking laws... yup, sounds justified to me... trample on the rights of thousands to catch a few.

quote:

Originally posted by Invasionmix My suggestion is to make an amendment to the charter of rights to allow the search, cause if you got nothing to hide then you wouldn't mind a search, and it benefits the public as a whole. (A lil like U.S. Patriot Act, kinda)

Do you remember what happened the last two times someone tried to make changes to the constitution? Sorry to say but the constitution is way too much of a political hot potato right now for anyone to try and open it up for ammendments. I can also assure you that if it were opened up any preposed ammendment would fail since Quebec and Alberta would tag on ammendments demanding additional powers, redistribution of existing powers, senate changes, and veto power over future constitutional ammendments. Suffice to say, in this political climate no one has the balls, skill, or universal approval required to make any changes to the constitution.

quote:

Originally posted by Invasionmix My suggestion is to make an amendment to the charter of rights to allow the search, cause if you got nothing to hide then you wouldn't mind a search, and it benefits the public as a whole.

So you don't mind that my buddy, a policeman, will show up next time you get in your car, and search it?

Cause.. you know.. you got nothing to hide?

My buddy will then follow you as you drive home. If you stop over at Timmy's, he'll ask to see what you got from the store in that paper bag.

Cause.. you know.. there might be a dealer working in the window, and that's your channel to get your weed.

After that my buddy will follow you home in his cruiser, and come into your house. To check up on your video collection.

Cause.. you know.. there might be some kiddie porn somewhere there.

While at home, he'll also check for any extra cash in your drawers.

Cause.. you know.. you might be dealing yourself. Just in case, he'll check.

Public will be safer if he does it.

quote:

Originally posted by Superstring

Hmm I'm sure that wouldn't happen, but I kinda see what you mean...

I guess what the police officer should've done was while he had the guy in custody was to obtain a search warrant

quote:

Originally posted by teufel-man I think its retarded that people can basically get away with murder because the police happened to find the murder weapon through an unlawful search or something.... I see this as a step forward

quote:

Originally posted by Invasionmix My suggestion is to make an amendment to the charter of rights to allow the search, cause if you got nothing to hide then you wouldn't mind a search, and it benefits the public as a whole. (A lil like U.S. Patriot Act, kinda)

SMH.

quote:

Originally posted by Invasionmix Hmm I'm sure that wouldn't happen, but I kinda see what you mean... I guess what the police officer should've done was while he had the guy in custody was to obtain a search warrant

Exactly. If everything is done by the book, there's no need for lengthy court trials/decisions on whether this bit or that bit of evidence is admissible in court. The officer should have minded his business and impounded the car (or whatever is the procedure in such cases). If he had reasonable suspicion, he should have asked for a warrant. At that point it's up to the judge to decide. Next time I'm pulled over because my taillight is broke, and it turns out I forgot to renew my sticker, I don't want some OPP dude going through my trunk - it's none of his business.

As far as "that wouldn't happen" thing - why wouldn't it happen? If a policeman is given a right to enter the premises/search a car without a warrant, why _wouldn't_ they do so? The point is not to let them. Will Smith - Enemy of the State - "It's none of your fscking business!"

I'm more upset that 35 kilos of coke is off the streets....no wonder its been so dry around here

but seriously, how any judge could throw out human rights because the ends justify the means is just retarded.....where does it end. Basically, as long as the police find illegal activiy then the means of finding it means nothing.

If the guy should not have been stopped, there should be no case. Any idea what colour the guy was? This is the exact reason there have been investigations into police conduct. If the cop did not stop him based on a credible lead, or 'probable cause', what criteria did he use to stop the man?

i cant believe that people are actually supporting the court ruling. thats what really amazes me.

While I don't agree with the illegal searches part... I don't think it's a bad thing to get a guy like that off the street.
and realistically, I can't see this becoming the norm after this one ruling. (which will probably be appealed and overturned anyways)

WE LIVE IN A POLICE STATE!!!!!!!



at least cops here dont pull you over once a week for a bribe!

if you want to catch a bad guy, you do it by the book.

or else civil liberties have no meaning

how did you think dictators get away with abuse of power? they do it under 'for the common good'

quote:

Originally posted by chinamon i cant believe that people are actually supporting the court ruling. thats what really amazes me.

+1

Furthermore, many many actual laws trample on our charter of rights except that most dont get challenged in court.

One step closer to totalitarianism. And the worst part is that just like in other dictatorships, people here support it step by step (Until they realize whats really up and by then its usually too late)

How's this for idiot cop behaviour?


Cop Dumps Handicapped Person on Floor - Watch more free videos

quote:

Originally posted by chinamon i cant believe that people are actually supporting the court ruling. thats what really amazes me.

Court wants to sentence a man who was carrying 35 kilos of cocaine and he should be let free since they didnt have a proper search warrant?

No search warrant = pretend that the whole thing never happened? Doesnt make much sense to me.

I am not saying that the police should be allowed to search anyone who they are slightly suspicous about, but obviously they made a good decision by deciding to search this guy....

All I am saying is that if you are very sure that person X has something illegal like a large quantity of drugs, illegal weapons, or something else that is of danger to the public you shouldnt hold yourself back from searching them and getting that kind of stuff off the street just because of a legal technicality

quote:

Originally posted by teufel-man Court wants to sentence a man who was carrying 35 kilos of cocaine and he should be let free since they didnt have a proper search warrant? No search warrant = pretend that the whole thing never happened? Doesnt make much sense to me. I am not saying that the police should be allowed to search anyone who they are slightly suspicous about, but obviously they made a good decision by deciding to search this guy.... All I am saying is that if you are very sure that person X has something illegal like a large quantity of drugs, illegal weapons, or something else that is of danger to the public you shouldnt hold yourself back from searching them and getting that kind of stuff off the street just because of a legal technicality

If the cops can't be bothered to follow the law, why should i?

quote:

Originally posted by teufel-man All I am saying is that if you are very sure that person X has something illegal like a large quantity of drugs, illegal weapons, or something else that is of danger to the public you shouldnt hold yourself back from searching them and getting that kind of stuff off the street just because of a legal technicality

WTF - legal technicality? This legal technicality happens to be something that protects your freedom as a human being - as a person. If you don't like it, you might want to check out countries where habeas corpus isn't the law.

The "Very sure" part - if you are so sure the person has drugs/weapons - go to the judge, and get a warrant. If your argument convinces the judge, you have a case. If your argument doesn't convince the judge, let it go.

Powered by: vBulletin
Copyright © 2000-2021, Jelsoft Enterprises Ltd.