How Much Law Breakin’ Is Too Much Law Breakin’?
Let’s start off with some admissions, we’ve all at some point in our lives broken a law or two, or three. The vast majority of us are “little law breakers“, we jay walk, we speed, we roll through a stop sign when it’s late at night on the country road we know so well, we throw our cigarette butt on the sidewalk, and we take an extra newspaper out of the box and give it to our buddy when we’ve only paid for one. Who among us can say that we do not now, nor ever have, broken a law?
For a good reason of course, we can always find a “good reason” for breaking a law can’t we?
Many times the authorities see us break the law and cut us some slack. We all know that 10k over is probably a safe bet on a 6 lane highway even if the cops are on the road, and jay walking is highly likely to go without commentary — heck, I got a speeding ticket this summer when caught on lidar doing 104k in a 60k zone, there was very little traffic on the road at the time, I wasn’t driving recklessly, and when asked, politely told the officer who tagged me that I was in fact in a bit of a bit of a hurry because it was about to rain and I wanted to get the bike home before the sky opened up on me. I got the ticket, but he wrote it down to 84k to reduce the fine, said that he’d probably be hurrying a bit himself if he was in my position, and told me I’d better scoot along if I was gonna beat the rain – in other words he minimized my law breaking because I had what he considered to be “a good reason for breaking the law”.
But what about the big, or even bigger, laws? Should I, or anyone, including that particular officer, be allowed to break them – even if it’s for a good reason?
A titanic struggle within the Supreme Court of Canada over how to redesign rules that govern throwing out tainted evidence reached a new level yesterday as the judges sought help in deciding how much is too much police misconduct.
During an appeal involving the seizure of 35 kilos (77 pounds) of cocaine found during a flagrantly illegal search, one judge after another expressed frustration with the difficulty of finding a workable balance between the many conflicting factors that arise in these battles over evidence.
They said that the case under appeal, R v. Harrison, was a classic instance of a police officer searching a car without a valid reason, and later lying in court in an attempt to justify his actions.
I’m gonna say no.
And I’m gonna say no because as soon as we are allowed to break a law we keep doing it – go back to the “10k over” rule and tell me I’m wrong.
Illegal search is a gross invasion of privacy, and no search should be allowed without a really good reason and a whole lot of oversight; because as soon as society allows search and seizure “just because”, or even on “a gut feeling” in some cases, it will be abused and none if us will ever be truly safe from it.
….. Ontario Crown counsel Michal Fairburn, a legal intervenor, asked the court not to create inflexible rules that harm public confidence by allowing criminals to go free to “punish” erring police officers.
“How can we say that it is more important to condemn Charter breaches than to prosecute, for example, a child murderer?” she asked.
I’m gonna rephrase that question, how can we ask the court to undermine public confidence in the police force, and indeed the government as a whole, by condoning breaches of our Charter rights?
– because that is exactly what Ontario Crown counsel Michal Fairburn is asking the court to do.
Bet you are just worried that an ‘unreasonable’ search will find a load of grass in your bike’s saddlebags.
I prefer to think of it as stretching. Not broken as such but rather tested.
Kind of a civic service.
Sorry, my previous remark was just in answer to your opening paragraph.
Your main question is tougher to answer.
I am inclined to say no as well on principle, but if it is really that clear cut you have to wonder why we are still arguing about it.
I appreciate that it can be a tough call for a cop with a suspicion that a serious crime is being committed, perhaps by someone that is “known to police” for other criminal activities.
So as a law abiding citizen, all be it in a stretchy kind of way, I have to figure that in my own best interests I would prefer the cop to intervene if the supposed crime was indeed serious but a breach of charter rights was necessary to prevent it. Not a dope bust that’s going to be thrown out of court but a violent crime of some sort.
If there was a violent crime being committed then we hope it would have been prevented by the officer’s actions even though the criminal charges might be dismissed later.
I wonder how many times a citizen’s charter rights are breached and no incriminating evidence is found? How much of a problem is it in fact?
Where do RIDE programs figure into this?
I’m going to go with “no” as well. It’s a basic right not to be subject to arbitrary searches.
It’s one thing to break a *law*. It’s another to violate a right.
I pay strict attention to rights and I work hard to consistently honour them, support them and to not violate them even when it would be easier, faster or just more to my immediate liking or comfort.
Legal/illegal however doesn’t count in my thinking except as a factor in risk assessment, ever.
I think you are trying to compare legalist apples and oranges. It is one thing for an individual to choose to break or not break a law mandated by the state – which said individual may have no interest or say in creating, and another for an agent of the state, acting on behalf of the state, to deliberately choose to circumvent those same laws and rights mandated by the state.
Having said that, if I remember correctly, there are occasions where the Police Act allows an individual police officer to warn or ignore an individual’s action or conduct, if said Police Officer believes no public interest is served by enforcing the law which would be prosecuted as a summary offence. A summary offence is the key word here. Indictable offences for murder, rape, etc., are not subject to discretionary powers of the state’s enforcers.
For example, blasphemy laws are still included in the criminal code but are currently not enforced. I doubt you could find a sitting court criminal justice who would not take great offense at having to preside over a blasphemy trial for a man cursing Jesus on a public street – although I would expect a cop might choose to charge the individual with causing a disturbance in a public place instead. I know in Ontario, depending on the nature of the offence, you can plea guilty with an explanation, and avoid either conviction or penalty providing you prove to a justice you had ‘just cause’ to break the law.
I have very little sympathy for the crown counsel’s position because it gives legal license for individual police officers of the state to change the nature of their role at their sole discretion with no judicial oversight and regardless of the nature of the offence. Now in the case before the Supreme Court, it may well be defendant will walk, but the public interest is still being served by the illegal seizure of cocaine as no justice will order the police to return a illegal substance to the defendant, and therefore, the potential harm to the ‘public good’ which the distribution of that cocaine could have caused, is still be circumvented.
I’m with Kateland (and others) here – the reality is, the cocaine is off the street. Rap the cop’s knuckles (a few days without pay or a demotion or something) and move on.
re: “…“How can we say that it is more important to condemn Charter breaches than to prosecute, for example, a child murderer?” she asked…”
Bernardo/Homolka (wow I forget how to spell her name) comes to mind.
I don’t think Kateland is right here. Provided the decision is taken in good faith and isn’t tinged with corruption, the police and the Crown always have the discretion not to charge, even in serious cases.
You have to vote ultimately for the rights of the citizen over police efficiency, but you can’t get much of a handle on whether the legal balance is just or sensible without taking a look as the myriad legal decisions that define that balance. Before our Charter-inspired aping of the Americans, I believe the rule was that you could sue or seek discipline for an illegal search, but not exclude the illicit fruits of such a search from evidence. It isn’t at all clear to me why it’s a good idea that you can now, although I would concede dogmatism isn’t terribly helpful on this one. The criminal justice system is certainly supposed to safeguard the individual from the arbitrary acts of the much more powerful state, but it isn’t supposed to be a chess game.