ther s Younger Brother

excluded or disregarded, expecially in
the area of illegally obtained evi-
dence. Section 24(2) states:

Where in proceedings under
subsection (1), a court con-
cludes that evidence was ob-
tained in a, manner that in-
fringed or denied any rights
or freedoms guaranteed by
this Charter, the evidence
shall be excluded if it is
established that, having re-
gard to all the circumstances,
the..admission of it in the
proceedings would bring the
administration of justice into
disrepute.

To understand where this exclu-
sionary precedent was derived, it is
necessary to examine one of the major
cases that is still used in Court,
regarding the question of the admis-
sibility of evidence. During the case
R. v. Sang. [1979 2All E.R. 1222
(H.L.)], the Trial Judge stated:

the mere fact that evidence
has been obtained by im-
proper means without more is
insufficient to support a rejec-
tion of evidence, except for
admissions, confessions, and
evidence obtained from the
accused after the commission
of the offence.

Another section of the Charter that
is often cited for consideration in
cases is Section 8:

Everyone has the right to be
secure against unreasonable
search or seizure.

In The Canadian Charter of Rights
and Freedoms, A Guide for Canadians
the following explanation of Section 8
is given:
The legal rights also prohibit
unreasonable search or sei-
zure. In addition, even though
the law authorizing the search
or seizure may be reasonable
in itself, the manner in which
it is executed by the police
might be challenged as un-
reasonable in the circum-
stances: for instance, the po-
lice will not be able to use
unnecessary force.

This is a very definitive section and
yet hundreds of cases exist where
unnecessary force has been utilized as
a means to obtain evidence. What
appears to be more unjust is that,
when these cases appear in court, the
evidence is very rarely excluded.

One such instance is the case of R.
v. Collins, [(1983) 5C.C.C. (3d) 141
(B.C.C.A.)]. This case states:

The police officers suspected
that the accused was in pos-
session of heroin. One of the
policemen seized her by the
throat to prevent her from
swallowing any evidence,
then dragged her from her
chair onto the floor. No drugs
were found in the accused’s
mouth, but a balloon contain-
ing heroin was taken from her
hand. She was charged with
possession of heroin for the
purpose of trafficking.

The Trial Judge found the search

for narcotics on the personage. of
Collins ‘‘unreasonable and a violation
of s. 8 of the Canadian Charter of
Rights and Freedoms...’’ but he went
on to state:
Even though the search and
seizure of both accused would
be regarded at law as an
unreasonable infringement of
a right provided by s. 8 of the
Charter, |’ have concluded
that, having regard to all the
circumstances of this case,
police conduct here was not
shocking such that the ad-
mission of the evidence de-
rived from these seizures
would necessarily cast the
administration of justice into
disrepute. _
Unfortunately in Canada, it is very
rare for a court to exclude evidence,
regardless of the way in which it is
obtained.

In light of the following, it is not
unreasonable to assume that the
presence of a threat exists to the
fundamental rights and freedoms of
individuals in Canada:

 

a) the illegal practices of the RCMP
as outlined by the McDonald Com-
mission and the Justice Department’s
hesitancy to prosecute officers in-
volved in these actions.

b) the hundreds of reported cases of
unauthorized civilian surveillance.

c) the use of unnecessary force in the
obtaining evidence.

d) the reluctance of the Justice
system to protect civilian rights,
guaranteed under the Canadian
Charter of Rights and Freedoms, and
e) the vague, discretionary duties
outlined for the CSIS in the Canadian

Security Intelligence Service Act,
1984.
The old doctrine of ‘reason of
state’,

embodies the principle that
the ultimate law is the safety
of state, and that the survival
and efficacy of the system of
law and law enforcement is of
paramount importance, and
overrides other considera-
tions, including specific provi-
sions of the law itself and the

 

b A oe Mp

wy

February 1, 1985 PAGE 11

rights of individuals. [The

Mackenzie King Record Vol.

3, 1970]
This doctrine, which. provides the
cornerstone of democracy, is in jeop-
ardy if the CSIS are allowed to
continue in the same fashion as their
predecessors. The track record of the
RCMP has set the precedent for the
abuse of law which could very well be
adopted by the CSIS. The threat to
national security is very real, but in
light of the evidence presented it is
perhaps time to question whether the
CSIS is a greater threat to national
security than the terrorists and activ-
ists from: which they are protecting
us.

If Canadians allow the rights of a
surveillance agency to supercede the
rights guaranteed them, then the
Canadian Constitution and the Char-
ter of Rights and Freedoms becomes
meaningless and the democratic cul-
ture which exists within Canada will
move one step closer to becoming a
culture based upon Authoritarianism.

Thank you Mr. Orwell, 1984 was an
appropriate year.

ale