Charter of Rights and Freedoms is a dream turned nightmare
BEAR with me as I become a devil's advocate against the trend that has turned a part of the Charter of Rights and Freedoms into a charter of legal rights for criminals.
As a lawyer from 1955 to 1975, then a judge in the Provincial Criminal Courts at 222 Main Street in Vancouver until 2001, I gained some insight into criminal justice before and after 1982, when the Charter became part of our constitution.
In the several decades before 1982, the criminal justice system changed in significant ways: capital punishment was repealed; the penitentiary system was modernized; parole was introduced; limited access to bail was replaced by mandatory release unless the crown made out a case for detention. And in the late 1960s, all provinces replaced lay magistrates with tenured and independent provincial court judges drawn from the ranks of practising lawyers.
Most of the legal rights in the Charter have roots in the criminal law and procedure. They include: protection against unreasonable search or seizure, arbitrary detention or imprisonment; a right to counsel on arrest; reasonable bail; an evidentiary presumption of innocence; and trial within a reasonable time before an independent and impartial judge.
The lifeblood of Charter legal rights is the power given to judges to punish police misconduct by excluding evidence. Section 24(2) stipulates that "Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights… guaranteed by the Charter, the evidence shall be excluded it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."
It seems that this corollary decision is almost a matter of reflex rather than thoughtful consideration, leading to an illusory pronouncement that admission into evidence of charter-tainted evidence would bring disrepute to the administration of justice. It is logical conjecture totally divorced from the reality of evidence against the accused and the expectations of the community that red-handed criminals ought to be convicted in spite of police misconduct.
Since 1982, the Supreme Court of Canada has assiduously painted itself into a corner over section 24(2). It is now struggling to find a way out in two cases presently under consideration: R v. Harrison and R v. Grant. Recently the court did the unthinkable - expressed its uncertainty publicly, and appealed to the lawyers for help in finalizing how the test should be formulated.
Some very caustic comments on the Charter were made in the fall of 2007 by a senior judge of the Ontario Court of Appeal, Mr. Justice David Doherty, in an address to the Criminal Lawyers Association annual conference.
As reported October 27, 2007, by Kirk Makin of the Globe and Mail, "Doherty told the convention he is worried about the public losing respect for the Charter and the courts because accused people frequently have their charges thrown out for breaches of the law. 'There are a bunch of people in the not-guilty pile that, on any sense of the factual reality, belong in the guilty pile,' he said. 'We run the danger of a public perception that this has all become a giant game of Snakes and Ladders that may be wonderful for the lawyers … You can't have the results float totally independent from what really happened, without the Charter becoming viewed as not the statement of basic principles we should all operate on, but a sort of the lawyers technical manifesto,' Judge Doherty said."
Makin also reported the remarks of another speaker, "Brian Greenspan, a top defence lawyer for the past three decades, (who) told the convention that the defence bar was caught by surprise when the judiciary began giving a broad, liberal interpretation to the Charter."
Doherty stated bluntly that "the Charter had given constitutional jurisdiction to every mutt in the country."
Mutt can only mean provincial court judges.
Though an admitted activist mutt, I am unrepentant in my devils advocacy.