(This column was published in the North Shore News on Feb. 3, 1999)


Justice in Charter stupor

By Leo Knight

THE public outcry following the decision by Mr. Justice Duncan Shaw in the matter of R vs. Sharpe may ultimately be the catalyst for some much needed change in the justice system.  


It's not the first time the citizenry has been outraged at logic-defying decisions by a superior court -- remember the drunkenness as a defence to rape case from the Supreme Court of Canada -- but this time the outrage is from coast to coast.  


The radio talk shows are buzzing with discussion of the decision. Well, boiling with anger might be a better descriptor.  


Virtually every talk show in every city, every editorial page in every newspaper -- across this country -- has spoken out against the Sharpe decision.  


By week's end, the papers were reporting that Shaw had received at least one death threat.  


Mr. Justice MacKenzie said in one interview he's never seen anything like it in his 40 years experience in the justice system.  


And no small wonder why.  


The test used by the judiciary in making a decision is whether "the administration of justice would be brought into disrepute."  


For some reason, the logic is that the illogical decisions such as Sharpe and Feeney are much more likely to bring the administration of justice into disrepute than if they upheld the common sense applied by the public.  


Let's look at the Feeney decision and the resulting second trial of the man initially convicted of second degree murder.  


In 1991, 86-year old Frank Boyle was bludgeoned to death in his home in the small town of Lively, about 100 km from Williams Lake.  


The police followed an investigative track that led to the trailer of Michael Feeney.  


Inside, they found Feeney passed out, still wearing the clothes later proven to be stained with the victim's blood.  


They also found money taken from Boyle's wallet.  


Following his arrest, Feeney gave a statement detailing how he bashed Boyle in the head with a crowbar. Feeney's conviction was essentially a slam-dunk based on the mountain of evidence.  


The conviction was taken to the B.C. Court of Appeal where it was upheld. And finally, in 1997 to the Supreme Court of Canada, where, in a 5-4 majority decision, the conviction was overturned.  


Evidently the police should have stopped their investigation at the trailer door and driven over an hour away to Williams Lake to find the nearest Justice of the Peace to get a search warrant and driven back to Lively in the faint hope that any evidence had not yet been destroyed.  


From the time the first constable was sworn in as a peace officer in this country, the police have had the right to enter a dwelling house and arrest someone without warrant, as long as they had the requisite "reasonable and probable grounds." When Feeney was arrested, that was the law.  


Well, five of the ermine-clad wonders on the country's highest bench decided the law should be changed, lest "the administration of justice..." blah, blah, blah.  


They even went so far as to instruct our elected representatives to rewrite the law to reflect this momentous decision.  


Feeney was ordered to be re-tried. Unfortunately, the evidence from the trailer had been excluded from the new trial by the high court decision.  


No bloody shirt directly linking Feeney to the murder. No bloody money from the victim's wallet. No confession.  


The re-trial has taken place in Vancouver over the past two weeks. As this is being written, the jury has been charged and are considering a verdict with only half of the available evidence. But what they decide is incidental at this point. The damage has been done.  


In closing arguments last Thursday, defence counsel Charles Lugosi, seized on the issue of the empty wallet to raise reasonable doubt in the minds of the jurors.  


If the wallet had been emptied by the killer, as the Crown claimed, why hadn't they introduced evidence to show Feeney had the money?  


The question hung in the air like the emanations of a flatulent dog.  


Because the evidence had been declared inadmissible as a result of the Supreme Court ruling, the Crown could only stand mute. Prosecutor Dianne Wiedemann was bound not to mention what had really happened.  


If the jury return a guilty verdict it is only because of the diligent work of the E Division Serious Crime section in reinvestigating the original murder and cobbling together a new case.  


But, you see, written instructions have already been issued to the police in B.C. on the issue of getting search warrants in every case where they didn't need them before.  


Hundreds of cases have been stayed or dropped outright.  


Now, maybe that helps the agenda of the attorney general trying to unclog a jammed court system, but it does nothing for the protection of a society the system was designed to safeguard.  


When "Feeney" was heard by the Supreme Court, Madame Justice L'Heureux-Dube wrote the minority opinion dissenting with the late John Sopinka and the majority.  


She wrote: "the exclusion of the evidence would clearly bring the administration of justice into disrepute."  


She later wrote a thoughtful and considered newspaper opinion piece.  


The nuts and bolts of her argument was that the system had lost its focus and wasn't doing its job of taking care of the victims.  


Too true.  


Unfortunately she wrote that over two years ago and nothing seems to have changed.  


In fact, I would argue it has become much worse.  


The judiciary is so caught up worshipping at the altar of the Charter that it can no longer claim guardianship of society's needs and rights.  


The outcry in the wake of the Sharpe ruling may finally be the proverbial straw, forcing the public to wake up to the injustice being foisted upon us and force a debate that can bring about the sort of change knocking the judicial "nannies" out of their Charter-induced stupor.  


Is it possible the worm has finally turned? 






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