The right to be free from being arbitrarily detained by the police

Every citizen has a constitutional right to be able to walk or drive on our streets without the police demanding that we stop and be subjected to a search of our bodies or our vehicles.

Back in the 1960s, a police officer approached me when I was walking on a street in downtown Toronto. He ordered me to stop and then he asked me if I had anything on me that I shouldn’t have. I told him that I didn’t. He immediately began looking into my jacket pockets and he pulled out a small nose spray container. Then he returned it to me. It was good thing he didn’t spray the liquid into his nose to test it. I had previously put a liquid chemical into it so that if I was attacked by anyone while walking on the street, I could temporarily blind him by spraying him with the substance in the container.

Had the police officer discovered that, he would have arrested me and charged me with having in my possession, an offensive volatile substance that is capable of causing discomfort to any person. If charged, I would have been convicted.

Because this incident in my life happened before the Canadian Charter of Rights came into being, there was no defence available to me that I could bring to the court that would result in the charge being dismissed.

The Canadian Charter of Rights protects citizens from arbitrarily being detained by police officers who choose to act on a whim. Section 8 of the Charter states that ‘everyone has the right to be secure against unreasonable search or seizure.’ Section 9 says that ‘everyone has the right not to be arbitrarily detained or imprisoned.’

One day in the 1960s while I was walking on a Toronto street, a police cruiser suddenly pulled up beside me and two police officers ran towards me and pushed me next to the wall of a building. They asked me where I had just come from. I told them. Then they took another look at me and apologized saying that a robbery had just taken place and I looked similar to what the robber looked like. In that incident, their actions were reasonable.

Ruby Collins was sitting sitting in a motel pub when she was attacked from behind and pushed to the floor in a "throat hold," used by police officers to stop drug dealers from swallowing narcotics. Despite the fact that she did have heroin on her person, she tested the right of every Canadian to be left alone. She eventually walked free after the Supreme Court of Canada ruled the search was illegal and excluded the evidence because the officer grabbed Collins based on what appeared to be nothing more than a hunch.

Justice Antonio Lamer said in the 1987 decision. "We cannot accept that police officers take flying tackles at people and seize them by the throat when they do not have reasonable and probable grounds to believe (they) are either dangerous or handlers of drugs."

It was a defining moment in the development of the Charter of Rights and Freedoms. Its ‘exclusionary remedy,’ then barely five years old, suddenly had muscle. And while evidence would not be tossed out of court every time police violated an accused person's rights, the decision opened the door to legal challenges in tens of thousands of cases.

More than 22 years later, however, as more courts grow impatient with allowing the guilty to escape conviction, lawyers and civil libertarians are bracing for two pending Supreme Court decisions that could change the rules for excluding evidence and make it far less certain accused people will walk free.

Human rights activists and defence lawyers worry that greater acceptance of tainted evidence will allow police to break the law with impunity, reducing the Charter's protections to mere words on paper.

The two cases before the Supreme Court involve appeals from Ontario. One concerns Donnohue Grant, 18, who was stopped by Toronto police in November, 2003, as he walked along Greenwood Ave. south of Danforth Ave. In their words, he looked fidgety. Surrounded by three officers and asked if he was carrying anything illicit, Grant admitted to having a loaded gun.

This violated his right not to be arbitrarily detained, said the court, which admitted the gun into evidence anyway and found him guilty, reasoning that while the encounter placed individual liberties under siege, increasing gun violence threatens "everyone's personal freedom."

In the second case, Bradley Harrison was driving through Northern Ontario when an OPP officer stopped his vehicle and found 77 pounds of cocaine inside. The officer had no basis for stopping Harrison and he lied about his reasons later in court.

By a 2-1 margin, the Court of Appeal refused to throw out the evidence, saying excluding an enormous amount of drugs would be far more damaging to the justice system's reputation than would allowing the use of evidence uncovered illegally.

But in dissent, Justice Eleanore Cronk called the officer's conduct "flagrant" and "disdainful" of the rights and freedoms protected by the Charter. Canada's exclusionary remedy, like the country itself, was created out of a deep desire to avoid being American.

On May 10, 2009, in a statement I had published in the Toronto Star, I said in part;

“Everyone has a right to be free from being detained merely because of a hunch by the police. For example, just because you are walking in an area where drugs are sold on the street does not mean that you are a drug pusher or user.”

I used that same argument in the 1990s when I was representing a client who was driving his pickup from the parking lot of a building that had drug dealers living in it. The police stopped his truck on the street a block from the building and in their search, they found a small bag of marijuana. They charged him and in my argument at his trial, I said that if the police could get away with it, then everyone could be subjected to detention by the police even if they are driving in a city where illicit drugs are sold. The judge agreed with me and dismissed the charge based on the premise that the police didn't have the right to detain my client merely on a hunch. Anything found on his person after that couldn’t be used as evidence against him at his trial.

There is a legal saying that applies in situations such as this. It goes like this. “You cannot eat the fruit of the poisoned tree.” In other words, if the arrest or detention was illegal, a police office can’t use as evidence, anything he finds that is illegal to have.

Those drawing up the Charter wanted to avoid adopting the exclusionary rule developed in the U.S., where any evidence gathered through an illegal search was automatically suppressed.

Years ago, a highway trooper in Florida pulled a black man’s vehicle over merely on a hunch that he probably had illicit drugs in the vehicle. He ordered the man to open the trunk of his car. Inside the truck was a dead body. The dead man had been shot to death by the suspect’s own gun. He was arrested and charged with murder. The case was thrown out of court since the search of the vehicle was illegal. In the United States, their bill of rights doesn’t have a similar section 24(2) in it so the dismissal of his case was non appealable.

Things changed under pressure from the Canadian Civil Liberties Association, which questioned the point of having a Charter if there were no consequences for rights violations.

The drafters compromised, handing courts the power, on a case-by-case basis, to exclude evidence obtained in violation of the Charter if its admission "would bring the administration of justice into disrepute."

But 10 years after the Collins case, another Supreme Court ruling known as the Stillman decision led courts across Canada to begin automatically excluding evidence taken from a person in breach of the Charter – things such as breath, blood and hair samples and statements. It can also include items such as a gun if a suspect tells police where it can be found.

The theory is that forcing an accused person to build a case against himself will make a trial unfair.

In recent years, some courts have voiced unease over the direction the law has taken, saying freeing accused people in the face of powerful evidence of guilt goes beyond what the Charter contemplated. In 2005, two Supreme Court judges went as far as saying the Stillman decision had been misinterpreted.

Decisions about excluding evidence also determine how far police can go in stopping innocent Canadians on the street and in their cars, said the University of Toronto's professor Roach, who remembers, as a teenager, having his gym bag searched as he got off a bus. "I didn't have anything on me, so I just kind of walked home and told my parents the police had searched me," Roach said. "I guess the argument is we have to exclude evidence where police actually discover incriminating evidence to make sure the police don't engage in widespread constitutional violations against the innocent."

The Supreme Court is going to look at this issue again. The argument of the Crown is that in some cases, letting the accused off the hook, even if he has committed a murder, is stretching the rights of the accused too far.

To some degree, I see that as being a valid argument.

Subsection 2 of Section 24 of the Charter states;

“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 in disrepute.”

There is a back side to this subsection. The expression, “….having regard to all the circumstances….” means that if excluding the evidence having regard to all the circumstances would bring the administration of justice into disrepute, then the evidence can be admitted as evidence.

For example, suppose the police entered a house illegally and during their search for drugs, they found a dead body in the house with the murder weapon still in the body with the suspect’s fingerprints on it, it would bring the administration of justice in disrepute if the judge hearing the case dismissed the charge of murder against the defendant because the police had no right to enter the house without a warrant.

Somewhere between the minor offence of shoplifting a small cheap item from a store and a major crime such as murder, there is a fine line that is drawn between dismissing cases where the police infringed the rights of the accused and where those rights can be ignored in the name of justice for the victims. Where that line is to be drawn, I cannot fathom. I will leave it to the Supreme Court justices to draw that line as they are far more qualified than I am to draw it.