More judges should urge police to comply with Charter rights


In September, all charges against a man and a woman charged as part of a raid on a clandestine drug lab were dismissed after judge ruled that Vancouver police had wilfully and flagrantly violated their Charter rights, numerous times during the investigation.

These violations included withholding Shu Tshung Wong and Lena Truong’s access to a lawyer for six hours, multiple incidents of unreasonable search and seizure, unlawfully holding one of the accused in custody for 14 hours, among other breaches of their rights.
Perhaps the most interesting aspect of Justice Nigel Kent’s ruling, however, was his comments shedding light on the pervasive nature of disregard for and disrespect of Charter rights by the Vancouver Police Department and its members.

Even though the court had already determined some of these Charter violations earlier in the trial, no one on behalf of the Crown or the police took the steps necessary to inform other officers about the outcomes of those rulings and how they can improve their conduct in the future. This is significant.

Police are required to act in accordance with the Charter. But they are unable to do so if they are not told how their conduct falls short of that, when it does. If there is not communication from Crown to police, and within the police force about what actions violate Charter rights the risk remains that investigations will often fail time and again for the same Charter defying conduct.

Major criminal trials of this nature are often broken down into a series of mini trials, known as “voir dires.” 
These mini-trials are each aimed at tackling different Charter issues, and looking at the evidence discrete to that issue. In each voir dire, the Crown and the defence lawyers examine witnesses and make a case for whether Charter rights were violated or respected. Then, once the voir dires are completed, argument is heard from both Crown and defence about whether evidence should be excluded from the trial as a result of the breaches.

The unique factor with this approach is that it allows police to become informed, as the trial progresses, about their compliance with Charter standards. In this case, given the judge’s reasons, it appears that several voir dires were conducted, many of which resulted in findings that Charter rights were violated.

As a result of the conduct of the police falling far short of what the Court expects and the Charter demands, Justice Kent ordered that all of the rulings about the Charter violations be provided to the Chief Constable of the Vancouver Police Department, so that the officers may become better educated.

This is a fantastic step. It is also extremely unusual. 
However, it is important to remember that courts do not just have the role of adjudicating the evidence and determining what is admissible, not admissible, and ultimately whether a person is guilty or not guilty. The courts also play an important function as a place of learning for police. Many senior police officers will agree that a good cross-examination on their investigation is the best way to learn how to do the investigation better in the future.

Ignorance of the Charter is not to be encouraged. Compliance with it is. The courts should demand that. And in seeing how the judge in this case handled the pervasive attitude of non-compliance with the Charter and ignorance of Charter values is encouraging.

Our courts are places of justice. 
Justice is as much achieved by the process of trials unfolding, as it is by police learning how to deliver better on their conduct in the future. More judges should adopt the approach of Justice Kent in this case. It is a breath of fresh air in ensuring proper conduct on behalf of state agents.

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