I am nothing close to a lawyer and so I don’t have even the beginnings of a clue about the intricacies of the law but I had always thought that the Charter is inviolable. This story makes me seriously question that assumption.
The important details - to me - are summarized thus:
Case 1 - Cop sees an SUV driving at exactly the speed limit and lacking front license plates. Suv is registered in Alberta where front plates aren’t required. Cop stops SUV and discovers driver, who claimed to have misplaced his license, is driving while suspended. Cop searches SUV (looking for license) and discovers a whack of cocaine. Supreme court rules the cop crossed the line and tosses the case. Fair enough
Case 2 - Cop sees guy walking on the sidewalk and acting suspiciously. Cop stops and searches guy and finds a bag of grass and a gun. Supreme court rules that “police didn’t have reasonable grounds to question Grant and failed to advise him of his right to counsel before questioning .” Conviction on five weapons charges is upheld. WTF?
In case two the guy is on the Queens’s Highway (a term I remember from grade 12 Law class) and the court agrees his rights were blatantly violated but public good outweighs the Charter and so the conviction sticks.
Does this mean that essentially a cop can do whatever he likes regardless of your rights so long as the illegal search produces contraband injurious to the public good? If so doesn’t that largely nullify the fundamental idea of “rights”?
I’m also interested to hear from American lawyers because I’ve gotten the impression that the American Constitution is the absolute final word so a comparison would be cool.
You’d be surprised to learn that the 4th and 5th amendments are not absolutes - they’re interpreted according to the currents of society at the time a case comes in front of the supreme court.
Terry Stops are basically at odds with the 4th amendment, but the supreme court found a way to wiggle around it.
I know the OP is from Canada, but wasn’t there recently a SCOTUS case that ruled evidence could be used against a defendant even when the cops mess up? (Sorry for my lowbrow language. IANAL.)
Neither the Charter nor the Constitution is inviolable. The Charter contains an express prohibition on the rights set out in it. Charter rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It’s a high hurdle but the Crown can and has met that burden in some cases.
The limits on the rights set out in the U.S. Constitution have been created by caselaw.
I haven’t read the opinions but they do seem contradictory to me–in each case, the cops merely had a suspicion, although I suppose the Alberta case is a bit more clearcut because the suspicion boiled down to the defendant acting in complete compliance with the law. I wonder whether the second case would have come out the same if there hadn’t been a gun involved …
From reading the article I got the impression that the charge for the bag of grass was dropped/overturned (or maybe the CBC ignored it for lack of sexiness) but the weapons charges stuck.
An Alabama man was found to be carrying methamphetamine and a pistol when he was accidentally arrested in 2004. He was arressed due to a clerical error.
John Roberts said:
You have to look at it this way the “exclusionary rule” was not put in force to give criminals a free pass. It was put there to stop abusive police actions. This is the key ABUSIVE actions, not errors.
If a cop bumps into you because he’s talking on his cell phone not paying attention and meth falls out of your pocket, that is an accident. There’s no abuse of police power.
After the exclusionary rule was adopted the courts applied it very broadly, letting criminals go for clerical and technical reasons. Then the public started putting pressure to crub this.
Criminals aren’t idiots, they use the law to their advantage so they can get off.
Not everyone agrees, of course and in the above descision Ruth Bader Ginsburg said the exclusionary rule was the only effective way to prevent negligent police from threatening individual freedom.
Having never read the Charter (shame on me :() I hadn’t realized that there were limitations expressed right in it. Thank-you since this pretty much answers my question on a factual level.
Wouldn’t the limits in Canada and the U.S. both be set by case-law? Not being a lawyer that might be a stupid question but I always thought case-law set precedent and precedent, pretty much, held sway. Is it vastly different in the States vs Canada in terms of case-law’s potency?
Doesn’t having an internaly set limit (abeit a flexible one) pretty much render the Charter merely a set of guidelines? I know (think I know :s) that the Notwithstanding Clause essentially means the Charter is binding unless a province decides that it isn’t and with loosely defined limits on inividual rights it seems to me that the Charter of Rights is more of a Suggestion of Rights. Though I readily admit that I may be wildly wrong.
Thank you again for you answer.
And thanks to all others who’ve responded so far. I read a bit about Terry stops and that alone has made this thread worthwhile - to me at least.
In some metaphysical sense, this may be true. However, as a matter of law, the opinion joined in by at least five SCOTUS justices is binding as regards the law at a given time, and yours is merely an opinion expressed by an American citizen (which I presume you are, from past posts; you’ve never explicitly specified AFAIK) – to which you are entitled, but of absolutely no validity legally.
There is a recourse available to you – two, actually. Neither are capable of rapid implementation, but both will give effect to your opinion.
Support and, with outhers, cause to be elected Presidents and Senators who will nominate and confirm Supreme Court Justices who will overturn the decisions with which you disagree.
Get elected or cause others to be elected who will amend the Constitution to be more in conformity with your views. This will of course require 2/3 majorities in both houses of Congress and simple majorities in both houses of 38 state legislatures (if Nebraska is on the list of 38, you only need to get a majority in the Unicameral there).
To the best of my knowledge (and Northern Piper, Muffin and other Canadian lawyers should clarify this), a decision, act, etc., arising under the Canadian Constitution is the law everywhere in Canada. Period. However, the Notwithstanding Clause permits a province to opt out of implementing the impacts of that decision for a term up to and including five years. (Don’t forget that the theoretical structure of powers in Canada is the reverse of that in the U.S. – the national government holds all powers not denied it constitutionally or delegated to the provinces.)
What the impacts of the Notwithstanding Clause might be to the situations set forth in the OP is not immediately clear to me – though I presume Zeke had a reason for raising it in post #12.
**Rumor_Watkins, **you have received previous moderator notes for insulting behavior in GQ. I’m making this one an official warning. Don’t do this again.
I mentioned it only in the context of saying that the Charter seems not to be as binding as I had thought. Inasmuch as my limited understanding of the clause makes me think provinces can choose to disregard the Charter in part or in whole at will.
If my mentioning it is irrelevant or causes confusion I am sorry. Not my intention. I’m just trying to get a feel for how truly meaningful (in a non-symbolic sense) the document is.
There’s a fairly legalese-light explanation of the Notwithstanding Clause here, written by a fellow teaching Political Science at the University of Alberta. It’s got a good explanation of how the clause can be used, and which parts of the Charter it cannot be applied to.
To address the original examples, one of the problems with caselaw is that all you need to do is a convince a judge that this instance is just different enough for established precedent to be reconsidered. Open to interpretation isn’t the half of it. (Ok, I’m making it sound a lot easier in theory than in practice, granted.)
The Nothwithstanding clause only applies to some sections of the Charter, not all, and
The manner in which it must be invoked is - deliberately - very politically visible and, as was likely Trudeau’s plan, has become exceptionally difficult to do without incurring significant political wrath.
So, unsurprisingly, the clause is almost never used for anything. The purpose of it was to ensure, as is consistent with our parliamentary system and history, that final power rested with elected representatives, not unelected judges. As a practical matter, however, using it to do anything substantive would - in all but one notable case, that being Quebec’s language laws that make French predominant and ever those have been scaled back - be waving a flag saying “Kick Us Out Of Office,” since unlike an obscure court case, using it would be on the front page of every paper.
