Below is a comment from Reid Rusonik, managing partner of the firm Pinkofskys, and personal friend and mentor of mine on the recent decline of Charter values in Ontario.
More specifically, this comment addresses the recent decision of R. v. L.B. where the Ontario Court of Appeal, through the voice of Justice Moldaver, dealt a serious blow to constitutional rights in Ontario.
Decisions like the recent one by Ontario Court Justice of Appeal Michael Moldaver lead to the potentially disastrous misunderstanding of the Canadian Charter of Rights and Freedoms and why it proscribes for the exclusion of unconstitutionally obtained evidence that permeates several other recent letters to the Editor.
The Charter calls for the exclusion of evidence obtained in violation of our rights as its only real means of disciplining state agents for breaching these rights and encouraging a better respect for these rights in the future. When a judge says the state cannot use a seized gun or drugs or stolen property in evidence against an accused he or she is saying the breach of a Charter-protected right is more of a danger to a free and democratic society than letting a particular accused escape punishment. The judge is not protecting that accused's rights, he is protecting our rights. He or she is not freeing that accused so much as he is protecting the freedom of us all.
The rights protected by the Charter stop the police from stopping us on the street or coming into our homes on a whim or because they do not like or are afraid or are suspicious of our religion or the colour of our skin. They make sure we are not humiliated by being searched in front of our children or loved ones because of mere suspicion we might be up to no good. They recognize our worth and our dignity as individuals.
The protection and sanctification of these rights afforded by this magnificent document hold us together as a society. It gives individuals a reason to believe in society, to honour and fight for it. If we did not have it, and society's agents were free to arbitrarily and unreasonably turn state power against individuals, individuals would turn against society.
When lawyer Daniel Stein is criticized by one of your writers for saying his client was simply "sitting at the edge of the school, hanging out, not doing anything" he is talking about a need not to protect the few punks doing this while carrying guns. He is talking about the thousands of absolutely innocent kids doing the same thing every day. He is talking about ensuring that these kids are not humiliated and terrified by the police unless there are reasonable grounds to believe they are in possession of serious contraband.
The courts, of course, will never get to discipline the police for their myriad of abuses in these instances because these kids will never become accused. What they will become is bitter and marginalized from society. Treat an innocent child like a criminal and see what you will get.
What would you think of Canada if the police could stop and search you on a whim and discover materials that indicated you were secretly gay, believed in a religion different from the rest of your family, or had a girlfriend on the side because you still adore and care for your wife but she is too sick to make love with you anymore? What if it kept you from getting to pick-up your child on time, or made your employer think you must be up to no good--or in the wrong political party or fledgling union--and got you fired?
Canada as a free and democratic society can survive it's largest city suffering 60 or even 600 homicides per year. It cannot survive taking away the rights of any of its citizens. Doing that instead of attacking the root causes of criminality will only create more criminals.
As a criminal defence lawyer, I like to put it all this way: a Charter exclusion a day keeps the Nazis away.
And as much as some of your other writers and Mr. Justice Moldaver or John Tory might not like it, we defence lawyers and our Charter arguments are not going to go away.
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