Always with a warrant

“A local lawyer is suing the Toronto Police Services Board for what he says was an unlawful arrest and a violation of his Charter rights during the city’s G20 summit – an incident the police say was simply an attempt to maintain public safety.

Nicholas dePencier Wright is seeking $25,000 in damages, plus other fees, in small claims court for a run-in with police on June 27, 2010, the second day of G20 meetings at the Metro Toronto Convention Centre. The lawsuit follows a probe by the province’s police watchdog, the Office of the Independent Police Review Director, in which investigators substantiated Mr. dePencier Wright’s claim that he was unlawfully arrested.”

• Lawyer suing police after arrest during G20, By Stephen Spencer Davis, Globe and Mail.com, Thursday, Feb. 16, 2012 3:00AM EST

When I was growing up, we were taught the precautionary principle a lot. Taking Drugs was bad because we could hurt others and/or ourselves. Drinking and driving was bad because we could hurt others and/or ourselves. Having sex without a condom was bad because we could hurt others and/or ourselves. That principle saved me from a lot of bad choices.

What is funny is that as we get older, we feel we get wiser. So we abandon that principle. Or put differently, since we are all adults we act in a more “rational” manner. From my brief time on this earth, nothing can be further from the Truth. For example, since the Chretien Era, the RCMP has gotten themselves into trouble dozens of times. There was the Pepper Spray Incident and the Dziekanski Death. There have been accusations of poor decisions in various reports about the death of Officers in Mayerthrope AB or the Territories. While the RCMP polices much of the country well, the Force has made very public errors of late: Errors which are likely due to a lack of oversight. Given that history, why would we want to give that force more power to conduct investigations without a warrant? In fact, why would we want any policy force to conduct investigations without judicial oversight?

That question of judicial oversight has been bothering me of late. For, judicial oversight is essential to our democracy. As J.S. Mill noted in his book “On Liberty”:

“But reflecting persons perceived that when society is itself the tyrant – society collectively, over the separates individuals who compose it- its means of tyrannizing are not restricted to the acts which it may do by hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough…”

Or put differently, J.S. Mill was worried about the strength of judges to stand up for minorities within society. However, he always assumed that judges would review the mandates of society. In his writings – penned before 1867, written before Canada’s birth – he assumed that Judges would issue warrants. This was because he understood his history. He knew that the English Star Chamber set its own rules and often caused more problems than it solved. And it was not because the British did not experience terrorism. The Gunpowder Plot of 1605 would just be one example.

So Imagine what a great Liberal Democratic Philosopher would say about our country that brought forth legislation which does not even allow a magistrate, or judge, to review breaches in one’s privacy or one’s right to a fair investigation and trial. Whether it should be an investigation into terrorism or into pedophilia, everyone should have the opportunity to have a fair trial. Just ask Donald Marshall Jr., David Milgaard and others that have been wrongly accused of crimes.

Their lives were broken because societies’ need to blame someone. These are not just simple mistakes. In general, the wrongful convicted went through the system. Search warrants were executed correctly and these citizens received a fair trial. However, the verdict was wrong and the problem is that these cases have consequences.

A CBC.ca report (Canada’s wrongful convictions: Cases where the courts got it wrong October 14, 2010), noted that “advocates say many who were ultimately exonerated watched their applications stall for years in the federal review board process.” While, a 1992 report prepared by the Library of Parliament states that “Wrongful convictions undermine the two prongs of the criminal justice system’s legitimacy…if someone is wrongfully convicted, that person is punished for an offence he or she did not commit and the actual perpetrator of the crime goes free.”

So the system failed these people. Some might ask why; but the answer is obvious: these were people that were at the margins of society. In Scott Turow’s book, Ultimate Punishment, he notes that:

 “in May 2002, Parris Glendenning, the Governor of Maryland, followed Gov. Ryan’s example and suspended executions in his state for a year, pending a study of racial disparities in who gets sentenced to death. (The report by Raymond Paternoster of the University of Maryland was released on January 7, 2003, and concluded that both race and geography affect death penalty decision in Maryland,…”

The same types of disparities show up in Canada. Let us point to the Royal Commission Report that came out Nineteen years after his conviction. As a BC Civil Liberties Association Report notes “Donald Marshall was exonerated by a Commission of Inquiry that found that racism and prejudice against Aboriginal peoples and a willingness at all levels of the criminal justice system to presume that Aboriginal peoples are prone to criminality resulted in Marshall’s wrongful conviction. Very simply, had Marshall been White, the investigation would have taken a different turn.” Various other reports show that other visible minorities in Canada share the same fate.

As noted by Scott Turow, another problem in convicting innocent persons is false confessions that are due to coercion. These false confessions can be the result of physical force or exhaustion due to lengthy twelve hour interrogations. And the reasons are simple:

“Under enormous pressure to solve these cases, police often become prisoners of their own initial hunches. A homicide investigation is not an academic inquiry allowing for even-handed consideration of every hypothesis. Instead, it’s conducted in an atmosphere where primitive fears about unknown, dangerous strangers imperil our sense of an orderly world. There is a strong emotional momentum to adopt any explanation. Cops often feel impelled to take the best lead and run with it.” While the author is American and describes the American system, he also described to “T” what happened to two Canadians: Steven Truscott and Guy Paul Morin. Both were accused of killing young girls and both were found guilty even though they were innocent. There were men who were found guilty in a case where Judicial Oversight was present. Imagine what would happen if there was not judicial oversight.

Right now, with all of our safeguards, Canada is a leader in Child Pornography litigation. The Sex Crimes Unit (Child Exploitation Section) of the Toronto Police Force often is a lead agency. BPW London’s website notes the story. In 2003, Det. Sgt. Paul Gillespie was frustrated with his resources. Sex criminals had great equipment; while the police were using antiquated computers. Paul was understandably angry, so at the end of a shift, he wrote a rogue email to Bill Gates, Chairman of Microsoft. It was simple: “Your technology helped created this mess; help us clean it up.”  That email started a partnership between Microsoft and the Toronto Police Force’s Sex Crime Unit. It culminated in the creation of software known as the Child Exploitation Tracking System (CETS).  This was all done within the existing legal framework.

One could look at various terrorist arrests made by civilian agencies in Canada, the US or Britain without the use of warrantless searches. As we learned in Canada through various investigations into the Air India bombing, as long as the police work is good, terrorists can be arrested and prosecuted. This always begs the question where is the need for warrantless searches in Canada? Will it become an unused part of the Code or will it be declared unconstitutional? Will it become like section 83.23 of the Criminal Code where a judge can now order someone be arrested because a police officer suspects that they know something. That same person has no right to silence. While they have a right to a lawyer, we will have to see if their rights to due process are maintained. For let us not forget, that Maher Arar started his ordeal because Canadian Security Services suspected that he held some information.

Or let us look at another example: the Security Certificate. In 2007, the security certificate process was found to be in violation of sections 7, 9 and 10 of the Canadian Charter of Rights and Freedoms and ruled unconstitutional by the Supreme Court of Canada in the landmark Charkaoui case. Instead of opening up the system, the minority Conservative Government introduced a system which allows the government to choose the lawyer representing the accused. In this new system, the lawyer representing the accused, “a special advocate”, cannot see all of the evidence against his or her client, they can only see a summary of the evidence. And to put icing on the cake, the advocate cannot share the “evidence summary” to their client to verify the story. At the time, Supported by the Liberal Party, this legislation passed. Yet, it raises questions: how can a lawyer defend his or her client, when the system is rigged against them? Or as J.S. Mill might say:

“Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development and, if possible, prevent the formation of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism.”

Is there an argument for warrantless searches? Of course, there is. Right now, when police officers have reasonable cause or reasons provided by the course of an investigation, they can go into people’s houses, onto people’s computers or read through their journals. To date police officers can go through your garbage, your bank accounts or your car without a warrant. Why do they need more? Supposedly 94% of all police requests to telecommunication companies to view client data are approved. So why do we need to give police more search powers?

My concern in this matter is about the “Other” as much as it is about me. As a person of Caribbean Heritage, I know profiling exists at either a conscious or unconscious level. If you are in the wrong place at the wrong time, anything can happen. This is especially true, if one has the “heat” that comes with public fear. Before the early eights, as an example, men would often drive home drunk. It was just an accepted risk. However, in the early eighties, we started to fear the consequence of drinking while under intoxication.  Laws and Police Practices changed because of fear. Everyone turned to their friends, neighbours and colleagues to ensure that no on they know drove under the influence. While, we have come a long way, that fear still prevails through our society. This is why it is easy for politicians to decrease the amount of alcohol that we, as citizens, are allowed to have in system.

Or look at terrorism. Before September 11th, Canadians promised that individual rights would not be touched because we experienced government without limits. From 1960 to 1970, there were a string of violent sovereigntist groups in Quebec. They culminated in the FLQ: A group that killed a cabinet minister and captured a diplomat. So in October, 1970, Canadians saw troops in our streets and had all of their rights and liberties taken away. Without the review of a judge, Police could arrest and hold citizens for days. Mass arrests in Quebec became normal. While, many police forces outside of Quebec conducted searches without warrants. Ever since, we have heard about how police forces mistreated citizens during this time. We promised ourselves that we would be better.

Therefore, the same Prime Minister that took our rights away in 1970, worked for twelve years to give us a Charter of Rights and Freedoms. Prime Ministers after that provided more tools like the separation of CSIS from the RCMP and stronger oversight requirements.

Furthermore, let us not forget that Canadians have always suffered from terrorism. While, in high school in the 90’s, I was on a male high school swim team. One of my teammates went to Israel. It was a shock to me when I saw him on the front cover of a Newspaper wondering aloud why a friend of his had to die. She had a pipe-bomb slipped under her beach towel. There was Air India 182, Pan Am Flight 103 and an incident involving a Canadian Pacific plane in a Japanese Airport.  Yet with all of that, we seemed to have forgotten our own history and our lessons.

Lord Acton said “power corrupts and absolute power corrupts absolutely.” So I ask our party to remember that warrants are not a luxury but a necessary part of our democratic fabric. They allow all of us to be free and to live in our society without having to worry about undue intrusion into our lives. However, they allow us to have a reasonably fair trial should we be suspected of being in the wrong. So, as a party, we should commit to a stance. If we ever are to pass legislation, we should find a way to incorporate warrants and other tools of judicial oversight. The phrase, “Always with a Warrant”, should become our mantra. So by protecting the Judicial Warrant, we are protecting the “Other” and maybe someday ourselves from unwarranted investigations.