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(Prime Time Crime exclusive Feb. 23, 2009)
Judges are the problem
By Tom Span
On Sunday February 22, 2009 I attended to the rally regarding Gang Violence held at Surrey’s Central City Plaza. While there, I saw numerous persons holding up signs that stated “JUDGES ARE THE PROBLEM” When I asked these persons for what part of the problem the judges are accountable, they spoke of the usual complaints relating to bail, slack sentences etc. Those complaints have been well echoed over the last couple of weeks during which time 12 shootings took place within the Vancouver Lower Mainland killing no less than seven persons. Throughout that time, it appeared to me by listening to radio talk shows and reading the newspapers that our local politicians for the most part, basically defended the judges as though they have no part to play in any of the dilemmas. Well, in my opinion, the judges have been a huge factor in fouling up our system of justice. By constantly, sometimes whimsically excluding evidence at trial, they have made Crown Counsels reluctant to agree to charges in the first place because often when they do agree, the judges assassinate the case by excluding vital evidence.
Judges must stop excluding evidence at trial for the slightest reasons such as they have been doing since 1982. The Canadian Charter of Rights and Freedoms, invoked in 1982, does not demand exclusion of evidence in all cases where a mistake is made. However, it appears that currently, many judges believe in that necessary to do so. The consequence is that not enough of the criminals make it to court. Less worry I guess about sentences etc.
The Canadian Charter of Rights and Freedoms states the following in relation to admissibility of evidence:
Section 24 (1) Anyone whose rights or freedoms, as guaranteed by this charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if 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.
What does Section 24 of the Charter mean? Simply put, it means that the judges must consider what is worse. Is it worse to let the guilty party off by disallowing evidence because a policeman made a mistake? Or is it worse to let the policeman get away with his mistake and allow the evidence, thus proving the criminal guilty?
I interpret Section 24 to mean that when a policeman, who has the instinct to recognize that a criminal has something illegal, or evidence of his involvement in a serious crime in his possession, that policeman, has the right on the public’s behalf to stop and search that criminal. If evidence of serious wrongdoing on the part of the criminal is then found, as long as the policemen’s actions are not grossly negligent or of a criminal nature, the evidence found should be admissible in a court of law. In my humble opinion, it has been judges excluding only slightly tainted evidence that has brought the administration of justice into its current state of disrepute.
A murderer should not get off because a policeman did not get a warrant to search him, his car, his house or whatever as long as the policeman, under the circumstances at hand, thought it appropriate to search. It is not appropriate that later, in so many cases, a judge finds that the policeman should have obtained the warrant first and then offers the remedy of excluding the evidence. As long as the policeman’s actions were not grossly negligent or criminal in nature, according to the Canadian Charter, a judge can and thereby should allow the evidence at trial.
Judges need to be brought back down to earth and be given lessons on what the law makers intended in 1982 when they passed the Charter of Rights. The law makers did not intend to have Canada go down the same road that the US was on in 1982, at which time in the US, evidence even slightly tainted, was not admissible. Canadian law makers intended to have a balancing act, where each individual case was to be considered on its merits. Section 24 of the Charter was specifically written in the manner that it was in order to allow room for error during enforcement of the law and still be effective relating to the ability to charge and convict wrongdoers.
It is very apparent that the intent of Section 24 of the Canadian Charter is an effort to control the actions of both the police and criminals, but not one more so than the other. Today however, the judge’s emphasis certainly appears to be more geared toward controlling the actions of the police as though they are the problem. Are the police running around lawlessly shooting people? No. Despite the judge’s fears, I doubt that situation will ever arise in Canada.
I ask, “What’s the big deal in allowing police to search when they deem it necessary?” We allow border guards to rip our cars apart when they think it’s O.K. We allow airport security to stroke us with metal detectors and rip apart our luggage. Are safe streets not as important as crossing borders and air travel? Get with it judges.