The Charter is supposed to protect society from unlawful conduct by the state. It is meant to act as a gatekeeper to ensure that the state does not use excuses to trample on a citizen’s fundamental rights. Harrison suggests once again that this is not the case. All the state has to do is show that it is in the greater good to successfully prosecute and convict a citizen when the crime is serious enough rather than protect the fundamental rights of individual citizens. In Harrison, he and a co-accused were arrested on a charge of trafficking in cocaine. The cocaine was found in the rear area of a rental vehicle which the appellant was driving, though his driver’s licence was suspended. The seized cocaine weighed 35 kilograms and had a street value of between $2,463,000 and $4,575,000. The police officer admitted at trial that he had no valid legal grounds to stop and search the defendant motor vehicle. In fact, the trial judge found that the police officer’s conduct was flagrant in nature and hence, I would ad that Harrison’s fundamental rights as guaranteed by the Charter have been grossly violated. Nevertheless, the trial judge as well as two out of the three judge panel hearing the appeal at the Ontario Court of Appeal held that they could not exclude the evidence because to do so would bring the administration of justice into disrepute. Drug trafficking is a scourge on society and the rights of the individual, Harrison, must be sacrificed on the public alter of society’s need for confidence in the administration of justice! The lone dissenting voice of Her Lordship Madam Justice Cronk is refreshing. In her reasons given for allowing the appeal and excluding the impugned evidence she states, “where the evidence was obtained as a result of serious and deliberate police misconduct, including an attempt by a police officer to mislead the court about the basis for his impugned conduct, respect for the values enshrined in the Charter must take precedence and the court must dissociate itself from such misconduct. What occurred here was disdainful of the rights and freedoms protected by the Charter. Accordingly, on a proper balancing of all relevant factors in this case, I conclude that the trial judge’s decision to admit the evidence of the cocaine must be set aside. While excluding the evidence could bring the administration of justice into disrepute, on the record in this case, the administration of justice would be brought into greater disrepute by admitting it. To hold otherwise, on the facts and in the circumstances of this case, would invite the disregard of Charter rights by the police, with an unspoken “assurance of impunity”. My only hope is that the Supreme Court of Canada hears this case and agrees with this sole voice of reason!

The recent decision of the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57 has once again attempted to clarify how courts are to deal with issues of necessity and reliability in the determination of whether an out-of-court video taped statement ought to be admitted into evidence at trial. The issue often arises in domestic violence cases, where a complainant does not wish to attend court or proceed to trial, after having given the police a video statement under oath. When the complainant fails to attend court or is otherwise unavailable, the Crown can bring an Application to admit the statement for the truth of its contents provided two conditions are satisfied – necessity and reliability. It is the later condition that has been the subject of considerable debate since the Supreme Court's decision in Regina v. Starr, [2000] 2 S.C.R. 144. That decision has generated much judicial commentary and academic criticism on various ! grounds, but most significantly on defining what constitutes "extrinsic" circumstances. In Khelawon, the Supreme Court did not expand the legal test developed from the line of cases of Regina v. Khan,[1990] 2 S.C.R. 531, Regina v. Smith, [1992] 2 S.C.R. 915, Regina v. B.(K.G., [1993] 1 S.C.R., 740, but sought to clarify whether "extrinsic" circumstances to the taking of the statement can be considered in determining threshold reliability. In a unanimous judgment written by Charron J., the Supreme Court has done away with categorizing factors in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions are to no longer be followed. Instead, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence, such as whether the declarant was influenced in making the allegations, and hence the statement, by some disgruntlement with the accused. The trial judge need not determine, at this stage, the truth of the statement but that there is sufficient reliability, based upon all relevant factors, to admit the evidence. The trial judge is to be guided by trial fairness, and not only in relation to the decision on admissibility but also is informed in applying his or her residual discretion to exclude the evidence even if necessity and reliability can be shown. Although, the ultimate test for reliability is subjecting the declarant to cross-examination, this decision arms defence lawyers with greater ability to attack an out-of-court statement beyond simply examining the immediate features of the statement such as the fact that it was provided on video or made under a promise to tell the truth. Important and relevant factors that were previously ignored can now be drawn upon to argue for the exclusion of such evidence. Most important are factors that tend to establish a motivation to make the allegations that are less than meritorious – that disclose an animus or ulterior motive, such as gaining an advantage in a matrimonial dispute. Similarly, factors relating to the declarant's competency to provide a statement are fertile ground to advance evidence on and to seek exclusion. In practice, it is yet to be seen if this decision will expand or restrict the number of out-of-court statements that make their way into trial as evidence. Aitan Lerner Barrister

We are experiencing a significant attack on our Charter rights with the many recent court decisions declaring certain formerly unlawful police searches and seizures as being constitutional. The Canadian Charter of Rights and Freedoms was created in order to protect ordinary citizens from the awesome power possessed by the state. It was supposed to guarantee every person a level of protection from unauthorized intrusion by the state with our privacy. With the twin decisions released by the Supreme Court of Canada in Grant and Harrison last year, we are no longer afforded the same level of protection from unlawful searches conducted by the police as we once were accustomed to. In fact, the very erosion of our privacy rights that criminal defence lawyers decried has become our new reality.

Her Majesty the Queen v. Zarinchang, Ontario Court of Appeal 2010 The right to reasonable bail is enshrined in our Canadian Charter of Rights and Freedoms pursuant to Section 11(e), or that is what I thought. The Ontario Court of Appeal disagrees with Mr. Justice Chisvin's ruling where in the above noted case, after the accused languished in jail for 24 days before being afforded a bail hearing, Justice Chisvin stayed the charges against Mr. Zarinchang finding that there is an endemic institutional problem enabling an accused person to exercise their constitutional right to a bail hearing without delay. The Ontario Court of Appeal held that Justice Chisvin erred in granting a stay of proceedings because of the 24 day delay since he did not balance the accused rights with the society’s interest of having a trial on the merits. Read another way, practically, it is okay to keep someone in jail for three and half weeks without a bail hearing because it is in the public interest to proceed with the trial to determine the merits of the case. This means that the police no longer feel the pressure to bring an accused to court promptly for a bail hearing because the court wants to have a trial on the merits of the case so it is alright to trample on the individual rights for the greater good. This means that the Crown does not feel pressured to deal with bail hearings on a timely basis and as such, much needed resources will not be diverted to establish better bail procedures and courts. Stay tuned, as I intend to write a more comprehensive article on this issue as I believe that this decision is a further erosion of our fundamental rights as citizens in a free and democratic state.

Criminal Records and Pardons A pardon is a government document that is granted to an individual by the National Parole Board (NPB). If granted, a pardon will remove and seal an individual’s criminal record permanently from federal databases (unless the individual is convicted of a new offence). A pardon provides numerous benefits to people with criminal records, as it removes many of the barriers a criminal record can present in daily life, including: • Gaining employment • Job promotions • Ability to be bonded • Travelling • Obtaining loans and mortgages • Gaining child custody • Education • Adopting • Volunteering • Gaining Citizenship status Pardon Eligibility Before an individual can apply for a pardon, they must first fulfill two conditions: • They must complete the terms of their sentence (this includes any incarceration, parole, and the full payment of any fines) • They must complete the required conviction free period before they can submit an application. For a summary offence this time period is 3 years, and for an indictable offence the time period is 5 years. Once these conditions have been fulfilled, the pardon application can be downloaded from the National Parole Board. The National Parole Board is responsible for processing and granting the pardon application, but the completion of the application itself will require contacting the RCMP and local police, and in some situations, the local courts, the Canadian Military, and Immigration Canada. It will take approximately 6-8 months to successfully complete the application, and once submitted to the NPB the results can be expected in a further 8-12 months. Possible Changes to Pardon Legislation On May 11, 2010, Public Safety Minister Vic Toews introduced a new bill that if passed, will revolutionize the current Criminal Records Act. This bill will have a major impact on the guidelines surrounding pardons, including time frames, eligibility, and even the very name. The term ‘pardon’ would be replaced with ‘record suspension’, and under the new guidelines some individuals would become permanently ineligible to apply for one, while others would be forced to complete longer ‘conviction free periods’ before becoming eligible to apply: Permanent Ineligibility: Individuals with three or more indictable offences, or who have committed a Schedule 1 Offence (a collection of sexual offences against minors) would become permanently ineligible to apply for a pardon/record suspension. Increased Conviction Free Periods: Individuals convicted of a summary offence would be required to wait 5 years, and individuals convicted of an indictable offence would be required to wait 10 years before they would become eligible to apply. National Parole Board: The NPB would be granted ‘absolute discretion’ when deciding whether to issue or refuse to issue a pardon/record suspension, including the power to look into the nature, gravity, and other circumstances surrounding the offence(s) for which the individual was convicted. It is important to note that this bill has been introduced for a second reading as of June 14, 2010. It is likely that some changes will be made, but many of the major points may in fact become new legislation in the very near future. This article was contributed by Pardon.ca.