criminal's rights

[PeterLongwood]

An experienced police officer detained a known criminal on a hunch. He searched him and found, among other things, a Steyr Mannlicher handgun. It is a semi-automatic weapon. With the weapon was found a magazine with ten rounds. In addition there was a round within the chamber of the weapon. In other words the weapon was live to the extent that if the trigger were pressed, a round would be fired.

The evidence was excluded because the police officer didn't have sufficient grounds for detaining the shithead, and the administration of justice would be "brought into disrepute" if the evidence was admitted into trial.

Give me a break. Here's a link to the whole sorry decision.

http://www.courts.gov.bc.ca/Jdb-txt/SC/06/18/2006BCSC1858.htm

 

[PeterLongwood]

so what's the solution?

This is NOT a problem with Canadian laws, it's a problem with a moronic judge who is trying to make up new laws as he goes along.

Judges are appointed "for life" (meaning age 75) in Canada. Other than the Seante, it's the most secure job in Canada (with a big paycheck and pension). Even if the Crown decides to appeal, and even if the appeal court overturns the decision, is there any way to smarten up this judge?

 

[iago]

It seems to me that lot of you folks don't understand the system of criminal justice in Canada. First there is the presumption of innocence. This doesn't exist to protect bad guys; it exists to protect the truly innocent from improper prosecution by the government.
The constitution protects all of us from reasonable search and seisure. If the facts is that the police operated on nothing more than a hunch it can hardly be said that the search is reasonable even if after the fact the hunch turns out to be correct.
What happens when they are wrong in their huch. Ask David Milgaard or Donald Marshall. Ask the family whose home was totally by police searching for drugs and finding none.
Certainly there will be cases where bad guys will get a break because of illegal practices by the government. But seems a small price to pay to be sure our basic freedoms remain in tact.
Is it not better that 10 bad guys go free rather than 1 innocent be wrongfully convicted

 

[PeterLongwood]

was it just a "hunch"?

It seems to me that lot of you folks don't understand the system of criminal justice in Canada. First there is the presumption of innocence. This doesn't exist to protect bad guys; it exists to protect the truly innocent from improper prosecution by the government.
The constitution protects all of us from reasonable search and seisure. If the facts is that the police operated on nothing more than a hunch it can hardly be said that the search is reasonable even if after the fact the hunch turns out to be correct.
What happens when they are wrong in their huch. Ask David Milgaard or Donald Marshall. Ask the family whose home was totally by police searching for drugs and finding none.
Certainly there will be cases where bad guys will get a break because of illegal practices by the government. But seems a small price to pay to be sure our basic freedoms remain in tact.
Is it not better that 10 bad guys go free rather than 1 innocent be wrongfully convicted

The judge called it a "hunch", but this was the evidence, at quarter to 1 in the morning:

[6] Detective Parker described the immediate area as primarily industrial. There was little or no ambient lighting in the immediate area of the vehicle. There was no residential housing in the immediate vicinity.

[7] Detective Parker drove by the vehicle and noted that there was a male in the driver's seat who was seated low and appeared to duck down below the driver's door quickly and then emerge again as Detective Parker drove by. He saw what he believed to be a female passenger in the passenger seat. He was unable to ascertain the demeanour of the driver of the vehicle as he drove by.

[8] Detective Parker turned and pulled up behind the Wust vehicle, activating his emergency lights in the process. He checked the licence plate on the vehicle on his computer. Detective Parker stated that he wished to enquire why the vehicle was parked there. He thought perhaps they might need assistance, or that the car was broken down or, that the commission of a crime might be underway.

[9] Detective Parker said that he had had previous experience with parked cars in the area. He said this was an area which had experienced a number of industrial break and enters and that he would often check cars that seemed to have no reason to be there. He noted that on one previous occasion he had stopped a vehicle in the area which contained an under-age prostitute together with a “John”.

[10] Detective Parker said that he took into account the time of the evening and the fact that there was nothing in the area which would explain the presence of the vehicle such as a gas station. He felt that the vehicle's presence needed some explanation. In other words, he stopped in order to prevent a crime from occurring or to see whether a crime was underway at the time.

[11] In that regard, he was concerned that there might be a break-and-enter in progress and that the car might be a getaway vehicle parked some distance away. He said that it was also possible that a sexual assault might be occurring. Finally, he considered that the vehicle might be in need of roadside assistance. The apparent ducking down of the driver, while raising his suspicion, did not affect his decision to check the vehicle.

[12] The computer check of the licence plate determined that the vehicle was associated with Wust. The computer provided information which advised that he was considered to be armed and dangerous. The computer data base contains intelligence from other police forces with respect to individuals who come into contact with police, as well as vehicle registration information.

[13] In addition, Detective Parker had had dealings with Wust in the past. He said that his dealings were nothing of particular note but that he had dealt with him at some nightclubs when the police had been called regarding disturbances. From his personal knowledge of Wust, Detective Parker found him to be volatile and vocal. He would be very demonstrative in his behaviour and did not hesitate to show his displeasure with police activities. As well, there had been prior Abbotsford Police Department shift briefings which had mentioned Wust. He was also considered as a suspect in one shooting, and was also known to be a victim in another shooting.


It seems to me some may say it was not just a hunch, but good police work. The judge called it a "hunch" in order to justify his ultimate decision. Seems like intellectual dishonesty to me.

 

[Cock Throppled]

This was very good police work by an experienced officer. The problem in many cases is judges seem to go out of their way to find fault with an investigation and look for creative ways to find accused either not guilty or guilty of lesser offences. They sometimes seem to think they are still defence counsel. Remeber the asshole who plowed his fully-loaded truck into stopped traffic at the tunnel? He was let off with a fine, despite the deaths of two people and many injured because the judge determined there was a lot of signage on that stretch of highway and the driver probably got distracted trying to read all the signs. Signs like "slow down" and "congestion ahead". Did this make any sense to anyone but that judge and the defence lawyer?
Remenber Ji Won Park? The Korean girl attacked while jogging in Stanley park? She has been left in a vegetative state for life. Sentence to the accused - nine years because of diminished reponsibility. The two ass wipes that beat the two east indian men to death with baseball bats? The judge determined they only get minimal punishment because they were too young to know that beating people with baseball bats might kill them. It's like Monty Python is running the court system.

 

[OTBn]

But, if the cops decide to single you out for reasons which amount to a charter violation and then they find undenyable proof of a crime, that proof is NOT inadmissable but you are free to sue the cops for violating your rights in a civil case.

In Canada an illegal search is a violation of civil rights with civil remedies, but if legitimate proof of a crime is found, that proof is still admissable in court.

jjinvan - what new laws were being written? Did you actually read the decision….. kind of looks like iago and I were the only ones to make it to the end of the decision... perhaps have another look at the final line – the one that states “The evidence recovered as a result of the breach of the accused's Charter rights is excluded pursuant to s. 24(2) of the Charter.”

The Exclusionary Rule in Canadian Law- Section 24 of the Charter of Rights and Freedoms:
Section 24(1) of the Charter provides that anyone who has rights or freedoms that have been infringed or denied may apply to a court to obtain a remedy that is just and appropriate. The remedy that the court can apply is to exclude the evidence obtained in the course of a violation of a constitutional right if it is established that having regard to all the circumstances, the admission of the evidence in the proceeding would bring the administration of justice into disrepute. This has become known as the Canadian Constitutional exclusionary rule. Thus, the most common and important remedy in the criminal process is the exclusion of evidence under section 24(2) of the Charter.

LOL - jjinvan… please hold your liberal judges, liberal agenda & left-wing mantra rant for another day

… always good to see positive mention of the Gun Registry, inspired talk of no term limits in the Senate, and an unrelated mention of perpetrator versus victim rights in regards killing a child

 

[PeterLongwood]

jjinvan - what new laws were being written? Did you actually read the decision….. kind of looks like iago and I were the only ones to make it to the end of the decision... perhaps have another look at the final line – the one that states “The evidence recovered as a result of the breach of the accused's Charter rights is excluded pursuant to s. 24(2) of the Charter.”

The Exclusionary Rule in Canadian Law- Section 24 of the Charter of Rights and Freedoms:
Section 24(1) of the Charter provides that anyone who has rights or freedoms that have been infringed or denied may apply to a court to obtain a remedy that is just and appropriate. The remedy that the court can apply is to exclude the evidence obtained in the course of a violation of a constitutional right if it is established that having regard to all the circumstances, the admission of the evidence in the proceeding would bring the administration of justice into disrepute. This has become known as the Canadian Constitutional exclusionary rule. Thus, the most common and important remedy in the criminal process is the exclusion of evidence under section 24(2) of the Charter.

LOL - jjinvan… please hold your liberal judges, liberal agenda & left-wing mantra rant for another day

… always good to see positive mention of the Gun Registry, inspired talk of no term limits in the Senate, and an unrelated mention of perpetrator versus victim rights in regards killing a child

I guess the real question is do we really think that admitting this loaded handgun into evidence, in these circumstances, would bring the administration of justice into disrepute? OR, does it bring the adminstration of justice into disrepute by excluding the handgun from evidence?

 

[OTBn]

I guess the real question is do we really think that admitting this loaded handgun into evidence, in these circumstances, would bring the administration of justice into disrepute? OR, does it bring the adminstration of justice into disrepute by excluding the handgun from evidence?

It was the defence position that "the constellation of factors known to Detective Parker at the time he determined to detain Wust was insufficient to raise any suspicion let alone a reasonable suspicion. Thereafter, the search conducted by Detective Parker was neither justified nor reasonable in the circumstances."

Per his decision, the Honourable Mr. Justice Brine concurred - he quite succinctly lays out how the defendant's ss. 8 and 9 Charter rights were breached.

 

[Avery]

I guess the real question is do we really think that admitting this loaded handgun into evidence, in these circumstances, would bring the administration of justice into disrepute? OR, does it bring the adminstration of justice into disrepute by excluding the handgun from evidence?

The problem seems to be that the legal community and the general public have diametrically opposing views on what brings the administration of justice into disrepute. This decision may well be supported by many in the the ivory tower that is the legal community because it "protects the integrity of the justice system". However, I would be willing to bet that 90+ per cent of the general public see it as bringing the administration of justice into disrepute.

 

[PeterLongwood]

Yes, but....

It was the defence position that "the constellation of factors known to Detective Parker at the time he determined to detain Wust was insufficient to raise any suspicion let alone a reasonable suspicion. Thereafter, the search conducted by Detective Parker was neither justified nor reasonable in the circumstances."

Per his decision, the Honourable Mr. Justice Brine concurred - he quite succinctly lays out how the defendant's ss. 8 and 9 Charter rights were breached.

What do YOU think?

Does disrepute of the administration of justice just mean what lawyers and judges think? Or does it mean what WE the public think? I think the latter. And this decision is shocking. The "breaches" were pretty minor (eg. Wust wasn't beaten to disclose the presence of a gun, etc.) and the offence is very serious (the weapon, etc.).

 

[Cock Throppled]

Isn't it the JOB of a cop to look for suspicious things? I might drive past a car parked in an industrial area and never look twice at it, but if I was a business owner that was broken into in that area and found out the cops didn't even bother to check a car in that area with no explanation I'd be pissed.

 

[bonanzabob]

I don't know how to quote these properly, but....

(30)
"As to the police power to search incidental to an investigative detention, it is clear that such searches, i.e. warrantless, are presumed to be unreasonable unless the Crown is able to establish on the balance of probabilities that the search was authorized by a reasonable law and was carried out in a reasonable manner: R. v. Buhay, [2003] 1 S.C.R. 631."

(40)
"There was no evidence that a crime had either been committed or was in the process of being committed when Detective Parker saw the Wust vehicle. The vehicle was stopped and parked legally, it was running and had its headlights on. There was no evidence that a vehicle in such a condition was or might be the hallmark of a getaway vehicle for a break and enter being committed nearby."

The judge's statement makes it sound like the defendant was sitting in his car outside an ice-cream parlor. I would think that the place and time of day would be sufficient "on the balance of probabilities" to assume that a search was reasonable.

 

[D.W.B]

This guy was hanging around and acting suspicious.

The cop had every right to ask him wtf he was doing at that hour in that area.

He was up to no good and the cop knew it.

Fiinding the gun only proves the point.

This judge definately needs to pull his head out of his ass.

 

[OTBn]

It was the defence position that "the constellation of factors known to Detective Parker at the time he determined to detain Wust was insufficient to raise any suspicion let alone a reasonable suspicion. Thereafter, the search conducted by Detective Parker was neither justified nor reasonable in the circumstances."

Per his decision, the Honourable Mr. Justice Brine concurred - he quite succinctly lays out how the defendant's ss. 8 and 9 Charter rights were breached.

What do YOU think?

Does disrepute of the administration of justice just mean what lawyers and judges think? Or does it mean what WE the public think? I think the latter. And this decision is shocking. The "breaches" were pretty minor (eg. Wust wasn't beaten to disclose the presence of a gun, etc.) and the offence is very serious (the weapon, etc.).

Section 8 of the Charter states “Everyone has the right to be secure against unreasonable search or seizure.”… that “any property found or seized by means of a violation of Section 8 can be excluded as evidence in a trial under Section 24(2) – exactly what occurred in this case.

you ask “What do I think”:

as the Canadian Charter of Rights and Freedoms is entrenched in our constitution… and as the task of interpreting and enforcing the Charter falls to the courts… and as we don’t elect our judges… and as judges are appointed by the elected government of the day… and as the public elects the government of the day…

I agree with you: it does mean, as you say, “what WE the public think”.

 

[OTBn]

As the judges are appointed by the elected government OF THE DAY (not the current one)

As the elected government of the day had less than 50% of the votes cast..

No, it does not mean what we, the public, as a majority, currently think.

Ha! when our system changes to one of popular vote wins...

... wait a minute... was less than 50% still the most?



so... what about Section 24(2)?