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(Prime Time Crime exclusive May 2, 2011)
No More Excuses
By Bob Cooper
The Election is over, the Bloc is history with the Liberals not far behind. Yay! Prime Minister Stephen Harper finally has a decisive majority. He no longer has to kiss Quebec’s ass and doesn’t have to ‘massage’ his legislative agenda to please Jack Layton. Sorry, it just slipped out.
Aside from the economy, the Conservative’s major plank was ‘Tough on Crime’ and as any working policeman will tell you their past efforts were pretty much window-dressing (With Conservatives like this who needs Liberals?) but now they’re out of excuses. Longer sentences are meaningless if the police can’t get criminals to court in the first place.
So, Mr. Harper, if you really want to get tough on crime a few basic fixes are needed to remove some huge roadblocks that keep the police from doing that and here’s a couple you can start on:
Search Warrants and Wiretaps
In any criminal investigation time is of the essence. Most Search Warrant applications (Information to Obtain) I submitted in the 1970s were less than one page long and most were granted in less than 10 minutes. Now they can run 50 or 100 pages because of requirements that the entire case be laid out rather than simply documenting the grounds to search one particular place. Also, ‘reasonable grounds’ means just that, not ‘absolute certainty’ and that needs to be made clear.
The same is true for Wiretaps where affidavits can run 500 pages or more with 80% of the information in them being virtually irrelevant and having to be spelled out chapter and verse rather than summarized as we used to. This makes the average time for obtaining a wiretap between 4 to 6 weeks reducing its effectiveness exponentially. There are emergency provisions where human life is at stake but I’m talking about the average case where the crime has already occurred. Let me be clear that I support the spirit of the Protection of Privacy Act that wiretaps are to be regarded as a last resort and to be used only when other investigative tactics have failed or will fail, but when you need one you need it now and not in 4 to 6 weeks.
Speaking of needing it now, one Supreme Court decision that has been very problematic is the one requiring One-Party Consent wiretaps be authorized by a judge rather than the victim simply signing a form. When I worked in Chinatown in the 1980s Extortion cases were a dime a dozen. I recall weeks where we had 2 or 3 on the go at once and the victims typically didn’t come to us until the 11th hour. We often had barely enough time to get into the back of the shop or restaurant and get the victim wired before the gangsters showed up and in many cases the form got signed afterward. Normally the only independent evidence in Extortion cases is the demands and threats coming from the accused himself. There’s only one way to obtain that evidence and the delay involved in getting a judge’s order is usually fatal to the case.
A final word on Search Warrants. Historically the police had the common-law right, some would argue a duty, to enter a crime scene and investigate. Now, if the crime scene is in any place where an accused could potentially have a privacy interest the police must obtain a Search Warrant in order to gather evidence. This presents mainly in domestic murders and means we’re all standing out on the sidewalk waiting while the killer is hours ahead of us. Ask women’s groups what they think of that.
DNA
When the government was crafting legislation to enable the police to gather DNA and use it as evidence, the arguments of civil liberties groups and the defense bar held sway and the act was hopelessly watered down. It was as if the goal was “Let’s see how useless we can make this”. Samples could only be taken after conviction for a very narrow list of crimes. The Crown had to apply in each case to the judge for an order and in some cases the judge could grant or refuse the order. Often the Crown forgot or just couldn’t be bothered. If the order was granted a police officer had to go to the prison at a later time to take the sample. Needless to say thousands of deserving cases fell (and continue to fall) through the cracks and one can only wonder how many crimes could have been solved, not to mention prevented, and how many lives could have been saved had these criminals’ DNA been in the bank and available for comparison.
I realize that DNA was fairly new and legislators wanted to err on the side of caution but that was a long time ago. DNA has more than proved its worth in criminal investigations and the science has withstood the most rigid scrutiny. Despite the initial fear-mongering I’ve yet to hear of a case where it’s been abused by government or law enforcement. It involves nothing more than a quick swab of the inside of the cheek and takes less time than obtaining fingerprints. DNA has also cleared people and helped police eliminate suspects. It’s time we accepted that and maximized the effectiveness of one of the few investigative tools the police have left. Bring DNA under the Identification of Criminals Act with samples taken automatically at time of arrest for any offence for which the accused could be fingerprinted.
Most of these problems are the direct result of Supreme Court decisions made without the slightest regard for the practical effect on law enforcement. Others, such as the DNA provisions are simply bad laws that need some teeth. All can be remedied by legislation. The bottom line is make it quick and make it simple. I’m not saying the job of the police should be easy but it shouldn’t be impossible.
Now get busy and when you’re done come back and I’ll have some more work for you on the Bail Reform Act, Proceeds of Crime, and the Youth Criminal Justice Act (YCJA = ‘You Can’t Jail Anyone’).
Bob Cooper is a retired Vancouver policeman. He walked a beat in Chinatown and later worked in the Asian Organized Crime Section and the Homicide Squad.