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R. v. Harrison – Ontario Court of Appeal Released February 11, 2008

March 06, 2008

The Charter is supposed to protect society from unlawful conduct by the state. It is meant to act as a gatekeeper to ensure that the state does not use excuses to trample on a citizen’s fundamental rights. Harrison suggests once again that this is not the case. All the state has to do is show that it is in the greater good to successfully prosecute and convict a citizen when the crime is serious enough rather than protect the fundamental rights of individual citizens.

In Harrison, he and a co-accused were arrested on a charge of trafficking in cocaine. The cocaine was found in the rear area of a rental vehicle which the appellant was driving, though his driver’s license was suspended. The seized cocaine weighed 35 kilograms and had a street value of between $2,463,000 and $4,575,000. The police officer admitted at trial that he had no valid legal grounds to stop and search the defendant motor vehicle. In fact, the trial judge found that the police officer’s conduct was flagrant in nature and hence, I would ad that Harrison’s fundamental rights as guaranteed by the Charter have been grossly violated. Nevertheless, the trial judge as well as two out of the three judge panel hearing the appeal at the Ontario Court of Appeal held that they could not exclude the evidence because to do so would bring the administration of justice into disrepute. Drug trafficking is a scourge on society and the rights of the individual, Harrison, must be sacrificed on the public alter of society’s need for confidence in the administration of justice!

The lone dissenting voice of Her Lordship Madam Justice Cronk is refreshing. In her reasons given for allowing the appeal and excluding the impugned evidence she states, “where the evidence was obtained as a result of serious and deliberate police misconduct, including an attempt by a police officer to mislead the court about the basis for his impugned conduct, respect for the values enshrined in the Charter must take precedence and the court must dissociate itself from such misconduct. What occurred here was disdainful of the rights and freedoms protected by the Charter. Accordingly, on a proper balancing of all relevant factors in this case, I conclude that the trial judge’s decision to admit the evidence of the cocaine must be set aside. While excluding the evidence could bring the administration of justice into disrepute, on the record in this case, the administration of justice would be brought into greater disrepute by admitting it. To hold otherwise, on the facts and in the circumstances of this case, would invite the disregard of Charter rights by the police, with an unspoken “assurance of impunity”.”

My only hope is that the Supreme Court of Canada hears this case and agrees with this sole voice of reason!