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(Prime Time Crime exclusive Dec 13, 2010)
Judges Are the Problem Revisited
By Tom Span
"Get with it judges” were the last words I wrote as a contributing writer on Prime Time Crime, on February 23, 2009. The contribution was named “Judges are the problem.” For those who did not read it, it is still on the Prime Time Crime website. The article, I believe, explained the judgement that “Judges are the problem.” Therefore, it is worth reading, especially if you have interest in the subject matter and reading it would be helpful for some people in order to keep up with what follows.
On Saturday December 11, 2010, about twenty two months after I wrote the article, I found myself attempting to sleep while wondering what I would be doing that night if I had not stopped being a policeman. I certainly, without hesitation know what I should be doing had I stayed on the job. I should at that time be “hunting” criminals. Why? Because like most current and former policemen, I believe that I am good at it and society deserves it. However, due to the current state of affairs within law enforcement, rather than fervently hunt the criminals, I would likely be waiting around somewhere for a criminal to commit a crime and be stupid enough to leave a trail of evidence laying around for me to follow up on for charges. That unfortunately does not occur often enough. What happens a lot is that criminals don’t fear policemen like they used to because these days, the police rarely stop the easily identifiable crooks and like a border guard, arbitrarily search their vehicles for evidence of crime. What’s the use many figure? Currently, any evidence found during this type of arbitrary search would not be admissible in a court of law. It wasn’t always like that. Anyway, off to sleep.
The following morning, I awoke to the news that 10 people (o.k. gangsters and girlfriends) were shot and wounded at about 2: 00am while standing in front of a restaurant that they just left. They had been there for a Birthday Party for one of the members of the group. Happy Birthday to whomever. By the way, the weapon of choice was an assault rifle.
Consider the possibilities of how things could have turned out in relation to the aforementioned scenario involving 10 victims and numerous more like it both prior to and more to come, if judges had not over time (since April 17, 1982 when the Canadian Charter of Rights and freedoms came into force) subverted justice, or if you prefer had not undermined the power and authority of an established criminal justice system with their unconscionable rulings related to the Admissibility of Evidence. Then, perhaps, or even likely, before this latest shooting took place, the following situation could have presented when someone decided to blow away a group of people standing on the street.
Scenario: A heads up, street smart policeman sees who he either believes or knows to be a criminal driving along the road. The policeman’s instincts tell him that there is something wrong with this picture and therefore he pulls the guy over.
After some preliminary conversation and close up observation, the policeman asks if he can search the guy’s car. The guy says, “No” The policeman has that extremely difficult thing to explain going on. His vibes are telling him to search the car because he knows that there is something afoul. Despite the driver’s lack of permission to search the car, he cuffs the guy and conducts an arbitrary search anyway and all he finds is a baggy of marijuana. The gravity of the marijuana offence is inconsequential when compared to the situation of policemen arbitrarily searching anyone they so chose for whatever reason. Therefore, in this instance there would be no charges laid because according to the Canadian Charter of Rights and Freedoms, the evidence shouldn’t and definitely wouldn’t be admissible.
Let’s consider however, while still keeping the Charter of Rights and Freedoms in mind, that the policeman finds a loaded assault rifle with extra ammo, which he seizes and then arrests the driver who demands to be let go because he thinks he shouldn’t have been stopped in the first place. He’s not let go. Instead, the policeman says, “Oh, you poor guy. You are just driving down the street minding your own business I guess, with a loaded assault rifle, extra .223 rounds in your car and you are then bothered by me. Sorry for the inconvenience. The sweat on your brow, your extremely nervous twitch and the fright of eminent danger on your face satisfied me that you were up to no good. Therefore, a search of your car was required and appropriately conducted.” From this point onward, the policeman explains, “Other than the arrest procedure, transportation, jail booking and reports, it is now is out of my hands. Tell it to the judge.”
In order to fully understand the responsibility of the judge at the subsequent trial of the aforementioned events while considering whether the evidence found in the car is admissible or not, the following is his guide.
The Canadian Charter of Rights and Freedoms (Proclaimed April 17, 1982) 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.
Well O.K. now. Here we go. The judges balancing act comes into play. What should the judge do? Should he have the poor guy thing on his mind and take into account the trivial inconvenience to the driver? Or should he much more so take into greater account what might have happened if the culprit had arrived at his intended spot for which he required the loaded assault rifle. Before you ask yourself this question, forget about what has been happening over the last 28 years in Canada’s courts during which time, as stated, the court system has been subverted by unconscionable rulings relating to Admissibility of Evidence. Instead, go back to the beginning, and consider only the intent of those who wrote the Charter in the manner they did. Then answer the question. What should the judge do? By the way, the judges have not “got with it.”