"As I mused, the fire burned"

Reflection on life as a person of faith.

30th Anniversary of the Charter

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A weekend radio show was discussing the 30th anniversary of the Charter of Rights and Freedoms. The show was called ‘Cop Talk’, and is two serving members of the Edmonton Police Service. I quite enjoy the show, partly because it offers an interesting window into the perspective of police officers.

They posed a question – do you think the Charter was a good thing (or something like that). They were very careful to not express their opinion, but I thought they were suggesting it may not have been the best thing…partly because of the number of guilty offenders who had gotten off based on Charter violations.

As an aside, at one point one of them mused it would be better if the Criminal Code was like the 10 Commandments – short statements written on tablets with no case law, as this would make things much simpler.

I almost called in to point out that there is a huge body of “case law” surrounding the 10 Commandments…Hebrew religious authorities have been writing interpretations of Torah (the Law) for thousands of years. There is a huge body of “case law” that relates to how the Law is to be interpreted and applied. The amount of material around Torah makes our Criminal Code, even with all the case law, look pretty straight forward.

It was an interesting discussion, and it made me wonder about the alternative. Would life in Canada be better without the Charter?

It is good to answer that question at least initially by looking at distant history. There was a time in English law when arbitrary detention and torture were common practices. Consider the number of executions for treason (thinking of Henry VIII’s wives here). The Charter assures us of security of the person, which the courts have used to hold law enforcement to an extremely high standard…most recently was an interesting case where the provisions for emergency wiretaps was struck down by the Supreme Court of Canada.

Just a few minutes reviewing the case law demonstrates that there is little latitude for law enforcement when it comes to actions that impinge on security of the person (including detention, arrest, search and seizure, breath samples, wiretapping and surveilance). Law enforcement are expected to get it right, or the case will be thrown out.

That’s an extremely unforgiving standard, and I can understand how frustrating it must be for the police. Police operate in a world that is unpredictable, sometimes hostile, and always chaotic and complex. In that dimly-lit, rapidly evolving, “organic” environment, the peace officer also has to be thinking about fundamental rights, and proper process. A huge challenge.

But, and a big but, I’m not sure the alternative – no Charter, no security of the person – is really Canadian. The usual argument is that police can be trusted to not abuse their authority. Unfortunately, even recent history shows that not to be true…we’ve recently seen police being less than truthful about things they’ve done. Those are in the great minority of interactions, but they still happen.

In my business, we operate with a presumption of honesty. That is, we don’t swear witnesses under oath, because we presume that appellants tell the truth. My last police encounter (reporting a minor accident at a station) evolved into the constable telling me that he had determined the minor damage on my bumper was old damage, and could not have been caused by a collision a week earlier. When I told him I didn’t appreciate being called a liar (and attempting insurance fraud) he got very angry, and turned and walked away. I come to report an accident, as required by law, and the presumption was of dishonesty.

Police are human, and will make mistakes, and will have bad days, just like me. Until they achieve a degree of perfection, we should probably continue to keep the Charter around.

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Written by sameo416

April 16, 2012 at 4:13 pm

Posted in Uncategorized

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