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