International Law

R. v. Harrison

A close call from the Ontario Court of Appeal on a s. 24(2) case.

The appellant had been stopped by a police officer and his SUV searched. Found inside were 77 pounds of cocaine (for some reason the Court eschews our newfangled metric system throughout their decision). This amount of cocaine was said to have a street value of “between $2,463,000 and $4,575,000.” Obviously pricing is not yet an exact science.

At trial the cocaine was admitted as evidence despite the trial judge’s finding of extremely serious and flagrant breaches of the appellant?s ss. 8 and 9 Charter rights. In a nutshell, the officer knew he did not have reasonable or probable grounds to stop the car or search it, but proceeded anyway. Then, in court, he gave misleading testimony attempting to justify his actions (including the odd idea that pulling the SUV over was in some way defending the “integrity” of the police).

Justices O’Connor and MacPherson denied the appeal, reasoning that the trial judge’s ruling fell under an “umbrella of deference.”

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.

In a very critical dissent Justice Cronk took her colleagues to task for mounting “a significant attack on the findings of fact made by the trial judge,” undermining those findings in order to minimize the seriousness of the Charter violations. This is strong stuff, and she has a point. And she also has some appropriate comments to make with regard to community standards (”The decision whether to admit evidence is not an uncontrolled, discretionary decision to be based on considerations that are idiosyncratic to a particular community at a particular time. Rather, it is the long-term values of the community at large that are engaged by s. 24(2)”) and the seriousness of the offence (”The jurisprudence does not support the proposition that any one factor, including the seriousness of the criminality at issue, ‘trumps’ all other relevant factors on a s. 24(2) analysis”). That said, s. 24(2) is, in the end, a balancing act and it’s hard to say that the majority here were in the wrong. That they seem to have had their finger on the scale though is troubling.

Full post as published by Criminal Review on February 12, 2008 (boomark / email).