HOPE SPRINGS ETERNAL
|
| WHITEHORSE, Yukonslavia, Kanuckistan -- Any law is wrong that has the
capacity to criminally convict a person who has not committed sin inside
the privacy of his own home, especially when jail is a possible penalty.
An aggravating section of the Criminal Code that allowed for such abuse was deemed unconstitutional by an Ontario appeal Court in July, 2002. The law was returned to Parliament for amendment and was finally revised officially in late April--21 months after the decree was issued. In an ill-conceived effort to "prevent gun-related violence in the interest of public safety", Parliament had passed a search-and-seizure law that suffered from what Ontario Justice Michael Moldaver termed "incurable overbreadth". A 3-to-0 decision struck down Criminal Code section 117.04(1) on the basis that the Charter of Rights and Freedoms guarantees protection against unreasonable search and seizure. Justice Moldaver wrote that 117.04(1) allowed for "wholesale fishing expeditions" in which police were permitted to invade an individual's privacy in circumstances where they may have no reason to even suspect, let alone believe, that the person owns weapons or that a crime has been or is going to be committed. This volley was shot across the bow as a direct result of an appeal case brought forward by London (Ont.) resident Kenneth Roy Hurrell. The Ontario appeal Court quashed the search warrant used to invade Hurrell's private home in February, 2000, and ordered the London (Ontario) Police Service to return his personal property that consisted of firearms, crossbows, ammunition and paperwork. One of Hurrell's two Toronto defence lawyers, Adam Boni, said the legislation made it very easy for the police to walk into anybody's home and rifle through it for firearms. It also could be used as justification for strip searches. The defence counsel's objective was to bring the legislation back into line with Canadians' high expectations for privacy within the home. It was ruled that CC s. 117.04(1) was in need of a constitutional overhaul. Parliament was given six months to rewrite the provision in conformity with the Charter of Rights and Freedoms. The amendment may not resolve the constitutional quagmire but might slow down hysterical police officers who request unjustifiable search warrants and the judges who sign off warrants without proper scrutiny. Now, a police officer MUST satisfy a justice with an Information and swear on a stack of Bibles h/she has REASONABLE (although not probable) grounds to BELIEVE: One, the person IS in possession of a weapon, a prohibited device, ammunition, prohibited ammunition or an explosive device; two, the item(s) IS/ARE located at the place the police want to search; and, three, give evidence why it IS NOT IN THE INTEREST OF PUBLIC SAFETY for the person to possess such item(s). This particular catch-all section has created undue turmoil for hundreds of decent Canadians who had no legal recourse to fight these "fishing expeditions" in court. Trial judges wouldn't let the accused argue constitutionality. Alberta-based defence lawyer Richard Fritze argued himself hoarse over an exact matter in a Whitehorse courtroom in July, 2000. He applied to quash the warrant RCMP used to storm the house of a Whitehorse resident and seize a collection of long arms and handguns in February, 2000 (re: Chapter 9, The Trial, eBook "Justice Served Up Yukonslavia Style: The Shameful Conspiracy Behind the Allen Carlos Trilogy", www.diArmani.com). Quashing the warrant would mean everybody could go home and live happily ever after. Yet it is extremely rare to convince a trial judge to overturn a warrant signed off by another judge. However, if one ever needed quashing, this was it. The warrant was alleged to be issued under a 117.04(1). But it was dressed up on the front cover of the RCMP's badly-flawed application to look like an irrelevant Form 1, which would pertain to another section of the Code. Fritze submitted that the whole circumstance surrounding the warrant application and the issuance of it were suspect. "This evidence that was obtained tends to bring the administration of justice into disrepute," he said. The Charter provides that a Canadian be secure against unreasonable search and seizure, he submitted. "Unreasonableness" is a violation of s.8 of the Charter. The standards must be the highest and most crucial in a residence or dwelling house, he continued. "A person's home is his castle." Strict compliance is required for a valid entry by the police and for the search and seizure of private property. "Otherwise, trespass is committed." It was highly unlikely that territorial Judge Heino Lilles paid close attention to the exhibit list at the back of the 58-page document, he said. Const. Wayne Gork had checked with the Canadian Firearms Centre but neglected to ensure accuracy. One handgun had been reported "Lost or Stolen" 14 years before and the information was duly recorded in a police registry. It is not legal for a police officer to request that a judge let him demand a mystery gun that doesn't exist. Additionally, the police did not know if Allen Carlos owned zero or a 101 long arms. The police only knew that he held a Firearms Acquisition Certificate which governed all long arms that MIGHT be in his possession. The police fortuitously stumbled across, then seized, the long arm collection after forcing their way inside his home on a "wholesale fishing expedition" to look specifically for six handguns noted on the exhibit list. Yet only five existed. This procedure was a monumental legal screw-up. But, because of Parliament's paranoia about guns and public safety, the accused was left without an effective recourse to combat the civil abuse. Under terms of the newest Firearms Act, a firearms owner can loan every handgun and the registration cards to another person who holds a proper license. The transfer does not have to be reported to the police. So, Const. Gork couldn't have known where the guns were when he approached the judge. Yet the police officer led the judicial officer to believe that the guns would be found in this particular house. Unless the police are mind-readers, they wouldn't know with certainty. Fritze called this "gross deception". By law, there has to be reasonable belief the items the police are looking for will be there, he said. He cited case law. Certain grounds must be covered to indicate the specified items exist in reality and are not just a figment of a police officer's imagination. There have to be facts in the application indicating that items will be found at the place specified; an offense has been committed; the items will afford evidence that the specified offense has been committed; grounds indicating the place to be searched is indeed the location specified in the information. "And, five, this can't be a 'fishing expedition'," he emphasized. Further, he pointed out, this was not a "pressing public safety" matter. The "investigation" dragged on for 18 months and was interrupted numerous times with police "vacations, rotations and whatnot" before Const. Gork applied for a warrant. "With respect to s. 8 of the Charter, minimum standards on which a judge may grant a search warrant is reasonable and probable grounds..." Fritze added. "It may have been reasonable to think the guns were there. But probable? Can't be. So both legs of that basic test have not been met, weren't met and couldn't be met." Territorial deputy judge Deborah Livingstone--parachuted in from London, Ontario, to hear the Whitehorse case--contended the guns were indeed found at the location where police assumed they would be. End of that story. While Livingstone though gun owners deserved the same respect as other citizens, she didn't believe the accused's civil rights had been violated; neither did she believe her court was the proper forum to argue constitutionality of the law. Her job was to determine if the judicial officer who issued the warrant had acted judiciously. In her opinion, he had. And, in this situation, her opinion was the only one that counted. "It is not necessary for the Crown to prove anything," she ruled. "It is not necessary for the Crown to adduce sufficient evidence to satisfy the Provincial Judge that there are reasonable grounds for a particular belief...it is rather a nebulous thing that the Crown must prove. It is desirability." Although Judge Livingstone ultimately acquitted the accused on all three storage infractions, Fritze's application to quash the search warrant failed in court on July 27, 2000. Two years hence, in the Kenneth Hurrell case, the Ontario Appeal Court upheld the exact arguments Fritze had put forth in the Yukon territorial court. Perhaps these recent revisions to the criminal law will help spare other decent Canadians the agony and trauma of unreasonable home invasions. Hope springs eternal. -- 30 -- Copyright 2004 diArmani.com |