(This column was published in the North Shore News on Dec. 23, 1997)
Court rulings raise issues of equity
By Leo Knight
AFTER Burnaby teacher William Bennest got a walk through the justice system, such as it is here in B.C., attention began to get focused on how our little corner of the universe has become a haven for pedophiles.
Despite the public outrage in the Bennest matter, which surely should have been an indicator on the mood of the citizenry, the B.C. Court of Appeal still freed another pedophile and purveyor of kiddie porn earlier this month in a bizarre and highly controversial decision.
Richard West was arrested in November 1994 after the Vancouver Police executed a search warrant on his West End apartment.
The police carted away what was described as a "huge" collection of videotapes, books, computer and photography equipment. He was charged with three counts of making, possessing and distributing child pornography.
He later pleaded guilty after unsuccessfully arguing the search was unconstitutional and was duly sentenced to five years in prison.
The Court of Appeal heard the arguments on the search and last week, Mr. Chief Justice Allan McEachern overturned the conviction and ordered a new trial. In the process he ruled all the evidence seized by police was now inadmissible.
The basis for the judgment was because a CBC TV news crew, with reporter Wayne Williams, was present when the police executed the warrant and the cameraman shot footage of the arrest, which took place inside the apartment.
According to the court, this rendered the search unreasonable and consequently, the evidence obtained inadmissible.
I have several problems with the decision rendered by the court.
In the first place, the CBC reporter was the one who advised the police of West and his activities. It was their investigation of ads placed in Vancouver print media which brought the issue of the pedophile to the surface.
The police, for their part, agreed to advise the CBC of the planned arrest date and time in return for their co-operation in not airing the story before the police could act. Surely, this was a reasonable and prudent action for the police to take.
When the arrest took place, the cameraman was shooting from the hallway of the apartment building looking into West's apartment.
The court concluded the cameraman must have been inside the actual residence. The CBC claims they were simply shooting from the doorway, albeit with a telephoto lens, but seeing nothing more than a neighbor might have seen walking by the open door.
In a subsequent news release, the CBC stated, "The underpinning of the court's ruling is that the media's actual and electronic intrusion into Mr. West's residence rendered the search unreasonable.
In our view, media presence at a police search operates as a safeguard to ensure the search is conducted reasonably. The ruling throws into question the principle that media should monitor police action, and as such it is a disturbing precedent."
The legal adage is that "justice must not only be done, but it must be seen to be done." As evidenced by the deal done in the Bennest case, the Court of Appeal seems now to be saying as well that justice should not be "seen to be done."
The court concluded the intrusion into West's privacy inside his residence was intolerable and the admission of the evidence would likely bring the "administration of justice into disrepute."
Never mind that West was actually running his "business" of selling kiddie porn out of his residence and as such, his apartment should not be given the same protection.
In the written judgment, Justice McEachern stated, "Our private residences are the places where we have the highest possible expectation of privacy against all intrusions except those authorized by law."
Certainly that was what Parliament intended when it made the penalty for breaking and entering into a dwelling house a maximum of life in prison, while the penalty for the same offence involving a commercial establishment is only 10 years.
English Common Law, the basis for our laws and democracy, dictates that "a man's home is his castle."
Could the court then explain the hypocrisy of its treatment of B&Es as marginally more serious than shoplifting?
Criminals get conditional sentences and probation for their umpteenth conviction. Yet the police lawfully enter a pedophile's apartment with a search warrant and, because a CBC cameraman poked his lens inside the door, the pedophile walks. Surely, you can't have it both ways.
Richard West is a maker and seller of child pornography. The police executed a lawful warrant to enter and search West's apartment. He was appropriately charged and pleaded guilty based on the admissibility of the mountains of kiddie porn found by the police.
He should be in jail.
That he is not is, in my opinion, "likely to bring the administration of justice into disrepute."
And so it goes. Another pedophile is free to prey on the most innocent of citizens, our children. Shame!