Proper balance finally struck on Charter and police rights

According to an article in the Globe and Mail, some members of the defence Bar are upset about a recent decision of the Ontario Court of Appeal ordering a new trial for a 15-year-old on eight firearms charges.

In our view, they have no reason to be critical of the judgment, which should have the support of every right-thinking Canadian.

As we see it, the ruling in R. v. L.B. strikes a proper balance between the competing needs for police to enforce our laws and for protection of individual rights enshrined in the Canadian Charter of Rights and Freedoms.

This balancing act constitutes one of the toughest jobs confronting our judiciary these days, particularly when it comes to dealing with impaired driving charges.

Over the years, our courts have come to interpret the Charter as requiring police to advise anyone of their constitutional rights (including the right to counsel) whenever the person is "detained." And in the case of suspected drunk driving, detention starts the moment the car is pulled over.

Five years ago this week, two plainclothes Toronto police officers were driving by Westview Collegiate, in the crime- and drug-ridden Jane-Finch area of North York, when they noticed two teenagers loitering outside the school during school hours.

One of the youths was seated on the railing of a walkway leading to the school and the other was sitting on the ground nearby, holding a black bag or satchel in his right hand. The officers stopped their cruiser and approached the youths to find out what they were up to. But when the youth who had been holding the bag approached one of the officers he was no longer holding the bag. Questioned as to why he wasn't in school, the youth (L.B.) replied that he had "a spare."

Curious as to why that youth no longer had the bag, the officers decided to look for it, and noticed that as they did so the youth was fidgety, pacing about and "looking around." When they located the bag "on the grass with some litter," and asked the two youths whose it was, L.B. replied, "I don't know." When the bag was found to contain a loaded handgun, both youths were arrested at gunpoint.

But when L.B. finally appeared before Youth Court judge Jack Grossman in April 2004, the trial was over almost before it began, the judge holding not only that police had violated L.B.'s privacy rights under the Charter but that the violation was so serious that the proceeds of the search - the loaded gun - must not be admitted as evidence. as a result, the accused was acquitted.

In his ruling, the judge found that admission of the evidence would involve his court turning a blind eye to police conduct "that breaches fundamental constitutional rights" and threatened "the very fabric of our society." But in allowing the Crown's appeal against the acquittal, three Ontario Court of Appeal judges saw the matter rather differently.

With Justices James MacPherson and Eleanore Cronk concurring, Justice Michael Moldaver concluded that the officers' conduct was entirely appropriate in the circumstances; that their actions didn't amount to detentions, and that even if the youths had been detained the evidence should have been admitted.

Justice Moldaver was satisfied that both officers "acted in good faith throughout. If they crossed the 'murky' line between legitimate questioning and arbitrary detention, in my view, they did so inadvertently. On this record, any Charter breaches that followed were likewise inadvertent and not a product of wilful or flagrant disregard of the respondent's rights."

As to whether excluding the gun would have a more serious impact on the repute of the administration of justice than admitting it, he said special note "must be made of the very serious offence for which the respondent was charged. "This case involves a loaded handgun in the possession of a student on school property. Conduct of that nature is unacceptable without exception. It is something that Canadians will not tolerate. It conjures up images of horror and anguish the likes of which few could have imagined 25 years ago when the Charter first came to being.

We think our readers will wholeheartedly agree with Justice Moldaver's comment that in the absence of egregious police conduct, most Canadians "would find it unconscionable for L.B. to be set free without a trial on the merits."

No doubt the ruling will be appealed.