Nothing fires up debate over the virtues and vices of the criminal justice system quite like the ejection of key evidence from a serious trial.
A pair of decisions last week by the Ontario Court of Appeal provide a striking juxtaposition. They give some confidence that judges can strike a sage balance.
Both cases involved allegations that police officers in Peel Region had abused the rights of the accused criminals in order to secure a conviction.
In the first case, the Court of Appeal upheld a stay of proceedings against Courtney Salmon, who was suspected of pimping an underage girl. A judge had earlier thrown out 17 charges, including human trafficking, on the ground that the officers had planted false identification cards for the girl in Mr. Salmon's wallet.
This was a classic instance of what is called "noble-cause corruption." Not only had the girl approached the police for help, but Mr. Salmon had been acquitted before on similar charges. The police evidently felt justified in fabricating evidence because they were convinced of his guilt.
As the trial judge said: "It is not so much that Mr. Salmon has been shabbily or badly treated. Rather, the state actors, the police, have been prepared to fabricate a case, in part, in order to secure a conviction."
The second case involved a gang murder investigated by the same police force. The victim was ambushed and shot 29 times as he sat in a car.
An undercover officer elicited confessions from two of the suspects by masquerading as an "Obeah man," a spiritual advisor to Caribbean community members who subscribe to a set of animist beliefs and rituals concerning good and evil spirits.
Reviewing the convictions of the three accused, the Court of Appeal found that their religious rights had not been abused. Rather, the court said that the defendants, who had little prior interest in Obeah, had exploited the ritualistic services of the Obeah man in a bid to defeat the ends of justice.
Many people believe that judges are quick to toss out evidence whenever a defence lawyer waves a copy of the Charter of Rights. In fact, the higher courts have engaged in a decades-long exercise to fashion and hone criteria for the admissibility of evidence, which do not unduly hobble the police.
While the exclusion of tainted evidence is sometimes mischaracterized as a punishment of society, rather than the police, it is no such thing. As our sorry history of wrongful convictions amply illustrates, when police trample upon rights and suffer no consequences, no one is safe.