I don’t have a right to search you… but you won’t mind, will you?

An Ontario (Canada) judge has ruled that unlawful search and seizures are now admissible in the interest of fighting crime.

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.

The officer stated that his integrity was at stake when deciding whether to pull over the driver or not.

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.

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.”




  1. OhForTheLoveOf says:

    #25 – if you ever find me posting in agreement with physical force, please point it out

    By willingly supporting the broad and invasive, privacy restricting, and oppressive police powers that you do, you are in de facto agreement with physical force.

    We vote like lemmings and we watch TV like lemmings, but we are not always like lemmings. Many of us will resist the unwarranted and unethical use of force and the state’s response will be to do physical damage to its citizens.

    #27 and #28

    Brilliant 🙂

    #29 – you have set forth the issue in poetic/emotional/dramatic ways that I fall short in doing.

    I suspect that you are a robot, and that is why you fail in those regards.

    #30 – It is sane and necessary because, unfortunately, it is critical that citizens be protected from the police that seek to rule over them rather than to protect and serve them.

  2. Phillep says:

    (Why did that cop go straight to the boxes? Could he have known the drugs were there? How?)

    Once the product of illegal searches by cops becomes acceptable court evidence, the cops will start going on fishing expeditions. (The classic example of why this is bad is the guy arrested for having the basic materials for a Molotov cocktail in his house. Empty bottles in the trash, some gas in the garage, and some rags.)

    The police do not have to pay to clean up their messes or to repair the damage done in the search, if they can find something they can claim is illegal, meaning such searches can become methods of political suppression or punishment.

    Consider: Ryan Horsley of Red’s Trading Post has spent over $100,000 in legal fees fighting the ATF and their harassment over a minuscule error rate in his records (things like “Y” instead of “Yes” in the list of questions on the form gun buyers have to fill out).

    http://redstradingpost.blogspot.com/

    If you want to see how the cops can harass someone right into bankruptcy, you need only take a look at how the ATF operates.

    Do you want your local cops to be able to do the same?

  3. Cinaedh says:

    OK, let’s look at this from a slightly different perspective.

    As the system now stands, if the cops are crooked or if they make a minor procedural error, evidence is ‘inadmissible’ and murderers, drug dealers, rapists etcetera and their lawyers are laughing their asses off about a nonsensical legal system, apparently designed (by lawyers) to thwart justice.

    The good news is, all the cops are ‘clean’ now, right? They don’t plant any evidence or lie about how they found what they found, simply because they have no choice except to tell lies to ensure justice (or injustice, for that matter) is done?

    Well, once again, I’m glad that’s working out so well, in spite of all the stories I read on this blog, watch on TV and read in the newspapers to the contrary.

    It seems to me, you let the bad guys get away so they can hurt you all over again – and you still have the same problem wiith the cops, if not a much, much worse problem.

  4. the Three-Headed Cat™ says:

    “It’s NOT common sense – or even particularly sane – to ‘pretend’ evidence doesn’t exist when it does, in fact, exist.”

    It has absolutely nothing to do with common sense or reality. It is LAW, which is a specific-purpose closed system of rules. The law cannot be made consistent with everyday, common-sense reasoning. When it is, then unexpected exceptions are found and exploited by bad actors.

    This is why contracts and such CANNOT be spelled out “in plain English.” “Plain English” permits multiple, unforeseeable interpretations of terms, which are known in the vernacular as “loopholes.” Every single detail, in every respect, in every possible case, must be explicitly made clear in a way that CANNOT BE INTERPRETED OTHERWISE. This sometimes demands that an actual, real-world situation be found irrelevant under law.

    If the rules are NOT FOLLOWED EXACTLY, then evidence discovered in the course of violating those rules CANNOT BE TAKEN INTO LEGAL CONSIDERATION – BECAUSE TO DO SO WOULD VALIDATE BREAKING THE RULE. And since it CANNOT be taken into consideration, as far as the law is concerned, it DOES NOT EXIST. IF THE LAW ACCEPTS THE EXISTENCE OF IMPROPERLY OBTAINED EVIDENCE, IT MUST DEEM ACCEPTABLE THE VIOLATION OF LAW WHICH CAUSED IT TO BE OBTAINED.

    That is EXACTLY the topic of THIS VERY THREAD – an allegedly legally-competent-and-educated JUDGE – USING YOUR FAULTY, LEGALLY-INVALID REASONING.

    You are not a judge, so you are not required to know or understand the legal reasoning that excludes illegally-obtained evidence from judicial notice. But a JUDGE – ANY JUDGE OF AN AMERICAN, ENGLISH OR CANADIAN COURT – IS EXPECTED TO TAKE AS A GIVEN, AND THEREFORE DEFER TO, THAT VERY SIMPLE, VERY FUNDAMENTAL PROTECTION OF CITIZENS’ RIGHTS.

    That’s what the whole thing is ABOUT…

  5. the Three-Headed Cat™ says:

    Cinaedh –

    You have this persistent, idealistic delusion that so many people unfamiliar with the nature and practice of law share.

    As the great Supreme Court Justice Oliver Wendell Holmes famously had to explain to a naïve lawyer before him, “This is a court of law, young man, not a court of justice.”

    JUSTICE is (in theory, anyway) the GOAL to be sought by adherence to a (sometimes-necessarily UNJUST) system of LAW.

    Don’t confuse the two. The law must sometimes ignore what is JUST and FAIR, because consistent adherence to the rules, the LAW, must always take precedence, or the system cannot work.

  6. Cinaedh says:

    #36 &#37 – 3HC

    I’m very well aware of the difference between the law and justice. I could be facetious here and tell you I watch Law and Order in all its’ various guises but in truth, I’ve seen a version of it, first hand and from an insider, front row seat.

    Both you and bobbo keep harping on this closed system of rules and trying to explain them to me and I’m arguing it’s those very rules you keep repeating mindlessly that are fuckt.

    I already know very well indeed the judges have to follow the rules, no matter how stupid they may be.

    I’m saying it might be possible to use common sense to change the rules, so they do lead us, at least in the direction of justice and as a bonus, keep some pretty horribly non-evolved beings off the street where I don’t want me or mine running into them.

    There seems to be an assumption here these rules of evidence have always existed and/or they’ve always been interpreted in the same way in every place on earth and because they exist, they are good rules.

    They aren’t good rules. They’re stupid rules. There has to be a better way but we’ll never discover a better if we insist everything must stay as it is, even if it doesn’t make any sense.

    You look at the law and you say, this is way it is and this is the way it will always be.

    I look at the law and I say, change the sucker again and this time, do a much better job of it.

  7. Phillep says:

    #38, Cinaedh, you ignore human nature. Allow illegal evidence in court and the cops /will/ find something to bring charges with, and the defendent /will/ have his life ruined trying to defend himself against crooked politicians out to get him, or out to gain a reputation, or out to get a bribe to lay off, or just a sadist having fun.

    It’s like freedom of speach. The rules must be applied evenly, no matter how contemptable one or another of the parties involved might be.

  8. bobbo says:

    #8–cinaedh==you are not responding to what I posted. We can’t connect if you refuse to even recognize the oppositions positions. The dialectic is broken, and circles form.

    Take a shower, have some breakfast, and maybe we can connect on the same subject on another post? OFTLO is pulling the same mischaracterization game, but not to the same repetitive extreme you are, plus, he gets bored easily.

    Now, I’m going to go follow the same advice I gave you.

  9. OhForTheLoveOf says:

    #34 – If you want to see how the cops can harass someone right into bankruptcy, you need only take a look at how the ATF operates.

    Do you want your local cops to be able to do the same?

    No.

    And I want the ATF to be used for what the ATF should be used for. Raiding and blowing up munitions depots operated by crazy zealous Christian Fundy militia groups and white supremacist groups (aka: domestic terrorists).

    Aside from that, they are as useful as the DEA… That is, not useful at all.

  10. Cinaedh says:

    Damn! You guys outlasted me again.

    You’re still wrong and I’m still right but I’ve run out of time. I have to get into my robes and get back into court.

  11. Named says:

    38,

    Common sense has no place in a court of law, or in the discussion of justice. only absolutes, black and white can be applied. Common sense is a human emotion and wildly unpredictable. What’s common sense to one is ludicrous to another…

  12. OhForTheLoveOf says:

    #36 – It seems to me, you let the bad guys get away so they can hurt you all over again –

    Crime stats are overblown and typically misrepresented. Violent crime has been in a steady decline for some time while media reporting on violent crime leaves the false impression that it is up.

    Statistically, the average person will go their entire lifetime and never be victim of or even witness a violent crime. This is one reason why I don’t care one way or the other about guns.

    I’ve lived in the cities (the actual cities, not the lilly-white suburbs) of (in no particular order) Chicago, Minneapolis, Indianapolis, and Dayton (I know, not much of a city) and I have worked the overnight shift as a cab driver for just about three years and I have never been in any kind of danger. I’m a prime danger risk. I go out at night. I go out alone. I ride my bicycle on urban streets late hours. I hang around seedy music clubs. I have friends of ill-repute. I’m not afraid of minorities like most whites are. I have the personal defense skills of a girl scout and the spine of a jellyfish.

    I should have been shot, stabbed, robbed, beaten, blackened, bruised, or something by now… But no… I continue living unscathed.

    Violent crimes are aberrant. Criminals being released due to procedural irregularities are aberrant. If these “injustices” you whine about were typical, then how did we end up imprisoning 25% of the world’s population and why are 80% of them non-violent?

    If there is anything wrong with the justice system, it isn’t that we release bad guys, its that we are far too zealous in our quest to imprison these so-called criminals.

    As a society, we are categorically NOT in danger from violent crime or terrorism nearly to the degree we imagine. In fact, or danger from terror is almost zero. We need to relax enforcement in almost every area and ramp up only in the small, few particularly plagued inner city neighborhoods where being poor and a minority has caused law enforcement to lose interest in safety.

  13. OhForTheLoveOf says:

    #39 – It’s like freedom of speach.

    Or the Freedom of Misspelling? 🙂

  14. the Three-Headed Cat™ says:

    Cinaedh

    It is a CLOSED system. The procedures, the definitions are internal. Changes must be made in ways prescribed by the very rules which are the subject of change.

    And this ‘common sense’ thingie again. HTF is something supposed to be brought into consistency with ‘common sense’ when there are as many different definitions of ‘common sense’ as there are people? What you think are obvious “common sense” changes are in no way shape or form obvious to others, approaching things as they are from different perspectives, with different concerns and priorities.

    “Change the law”?

    Wow. I’d like to see that. Let’s see; the people who prosecuted alleged violations of law are all… lawyers. The people who defend others charged with these alleged violations of law are all… lawyers. And the people who create the very laws themselves, our legislators, are all… LAWYERS.

    Do you REALLY believe, for one attosecond, that they have any intention of starving the very beast that they, parasites that they are, depend on for their existence? That they are going to even begin to entertain the thought of making the system LESS complex, LESS expensive? Of making their brothers of the Bar LESS necessary? Of changing things so that those brethren have FEWER customers? Or making their brother judges LESS necessary, by decreasing their workload?

    There a whole multi-trillion-dollar industry of creating unnecessary laws thereby making more people into criminals, arresting and incarcerating as many people as possible, necessitating the services of prosecutors living off the taxpayers and defense lawyers sucking the lifeblood out of guilty and innocent people alike – you think you have some way of convincing LAWYERS to slash the amount of workload, and therefore PROFIT they bleed the American people for?

    Good luck.

    • • • • • • • •

    In over 50 years of living in, among other places, D.C, South Florida and Houston, three of the toughest, most violent places you could pick, I have suffered INFINITELY more, physically and financially, from the deranged, obscene, corrupt “justice” system than anything those “bad guys” you’re so afraid of have ever done to me. And what makes it worse is, I come from a heavy law-enforcement background, familywise and professionally. I’m about as far from a criminal as one can get – and if someone with my virtually-stainless background and lifestyle can be fucked over so badly, what happens to the average citizen, lacking my specialized knowledge, my connections in law and law enforcement? They – and that means you – are only a hairsbreadth away from having your life completely upended and ruined at any time, and you don’t even realize it..

    I love the clowns who vote for “law and order” Republican thuggery – until they find themselves or someone they care about on the receiving end. Then, you never heard such outrage about “injustice” – but it was all OK when happening to “pretty horribly non-evolved beings off the street.” Newsflash – as long as they play along with their appointed roles in the system, they get put back right back on the street – to make room for non-dangerous, but highly-profitable-to-everyone drug offenders.

    Try working to change the emphasis of who gets arrested, prosecuted and incarcerated to those who actually present genuine danger to society – instead of those who are easy, profitable targets – and ‘you and yours’ won’t have to worry about running into them.

  15. OhForTheLoveOf says:

    #40 – #8–cinaedh==you are not responding to what I posted.

    Funny… No one else has trouble communicating either in agreement or disagreement with her (I think cinaedh is a she, please correct me if I am wrong).

    Seriously dude, if you want to be a conversation cop, go teach grammar at a community college.

    OFTLO is pulling the same mischaracterization game, but not to the same repetitive extreme you are, plus, he gets bored easily.

    Bored, busy, carpel tunnelized, whatever… But I’m not mischaracterizing anything. I’m just not interested in your rules. I type what I want to say and you are free to respond or not, agree or not, or say something different… but I don’t give a damn if our parlez meets your criteria. I’m just having a conversation. You should try that. It’s good. It’s even better over dinner or when traveling in a car.

    If you want us to engage in a structured debate, offer a cash prize to the winner.

  16. Phillep says:

    OFTLO, you mean murdering people you disagree with?

  17. OhForTheLoveOf says:

    #48 – No… I mean eliminating the access to weapons for people who represent a clear and present danger to society at large.

  18. Phillep says:

    How do you plan to do that without removing access to weapons for people who do not represent a clear and present danger to society at large? Weapons that people need in order to stay alive because they are crippled with age?

    BTW, I assume you are talking about Ruby Ridge and Waco? You will need to demonstrate that they were a clear and present danger to anyone.

    Eh, never mind. Work load just jumped.

  19. OhForTheLoveOf says:

    #50 – How do you plan to do that without removing access to weapons for people who do not represent a clear and present danger to society at large?

    By not taking their guns.

    Now if the crazy militia nutbag group’s guns are all legally registered, they can keep those too. But if not… too bad…

    BTW, I assume you are talking about Ruby Ridge and Waco?

    Here is my advice to all extremist nutjobs. If the FBI is coming to your house… Let them in.

    If David Koresch wasn’t an evil cult leader who brainwashed his followers and raped their daughters, then he could have proved that in court.

    If Randy Weaver wasn’t a fucktard racist/misogynist who was buying or selling illegal guns, he could have proved that in court too. Instead he got his wife killed, not that it it mattered because a wife is someone you love, not someone you force to stay in the “blood room” for 6 days a month.

    This is what pisses me off about Waco. It took a month to do what should have been done by nightfall. And if it had been done straight up, the Davidians wouldn’t have had time to martyr themselves…

    Weaver and Koresch brought what happened upon themselves, and the real shame of it is that despite being scumbags, all evidence I’m aware of suggests they would have likely beaten whatever charges were being brought against them.

  20. Cinaedh says:

    #47 – OFTLO

    “I think cinaedh is a she, please correct me if I am wrong”

    I think I should probably be very flattered but in truth, I don’t know if I’m flattered or not. You’ll have to figure it out from there, mon ami. 🙂

    This discussion has been very illuminating, educational and inspirational. I very much appreciate being ‘schooled’ by bobbo, 3HC, OFTLO, Named, Phillep and others but I fear my limited attention span has been exhausted.

    While I do agree with many of your points and fully understand many others, I suspect my life experience has left me with a jaundiced view of some apparently sacred aspects of civilization and the law.


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