(This
column was published in the North
Shore News on
Feb. 3, 1999)
Justice in
Charter stupor
By Leo Knight
THE
public outcry following the decision by Mr. Justice Duncan Shaw
in the matter of R vs. Sharpe may ultimately be the catalyst for
some much needed change in the justice system.
It's
not the first time the citizenry has been outraged at
logic-defying decisions by a superior court -- remember the
drunkenness as a defence to rape case from the Supreme Court of
Canada -- but this time the outrage is from coast to coast.
The
radio talk shows are buzzing with discussion of the decision.
Well, boiling with anger might be a better descriptor.
Virtually
every talk show in every city, every editorial page in every
newspaper -- across this country -- has spoken out against the
Sharpe decision.
By
week's end, the papers were reporting that Shaw had received at
least one death threat.
Mr.
Justice MacKenzie said in one interview he's never seen anything
like it in his 40 years experience in the justice system.
And
no small wonder why.
The
test used by the judiciary in making a decision is whether
"the administration of justice would be brought into
disrepute."
For
some reason, the logic is that the illogical decisions such as
Sharpe and Feeney are much more likely to bring the
administration of justice into disrepute than if they upheld the
common sense applied by the public.
Let's
look at the Feeney decision and the resulting second trial of
the man initially convicted of second degree murder.
In
1991, 86-year old Frank Boyle was bludgeoned to death in his
home in the small town of Lively, about 100 km from Williams
Lake.
The
police followed an investigative track that led to the trailer
of Michael Feeney.
Inside,
they found Feeney passed out, still wearing the clothes later
proven to be stained with the victim's blood.
They
also found money taken from Boyle's wallet.
Following
his arrest, Feeney gave a statement detailing how he bashed
Boyle in the head with a crowbar. Feeney's conviction was
essentially a slam-dunk based on the mountain of evidence.
The
conviction was taken to the B.C. Court of Appeal where it was
upheld. And finally, in 1997 to the Supreme Court of Canada,
where, in a 5-4 majority decision, the conviction was
overturned.
Evidently
the police should have stopped their investigation at the
trailer door and driven over an hour away to Williams Lake to
find the nearest Justice of the Peace to get a search warrant
and driven back to Lively in the faint hope that any evidence
had not yet been destroyed.
From
the time the first constable was sworn in as a peace officer in
this country, the police have had the right to enter a dwelling
house and arrest someone without warrant, as long as they had
the requisite "reasonable and probable grounds." When
Feeney was arrested, that was the law.
Well,
five of the ermine-clad wonders on the country's highest bench
decided the law should be changed, lest "the administration
of justice..." blah, blah, blah.
They
even went so far as to instruct our elected representatives to
rewrite the law to reflect this momentous decision.
Feeney
was ordered to be re-tried. Unfortunately, the evidence from the
trailer had been excluded from the new trial by the high court
decision.
No
bloody shirt directly linking Feeney to the murder. No bloody
money from the victim's wallet. No confession.
The
re-trial has taken place in Vancouver over the past two weeks.
As this is being written, the jury has been charged and are
considering a verdict with only half of the available evidence.
But what they decide is incidental at this point. The damage has
been done.
In
closing arguments last Thursday, defence counsel Charles Lugosi,
seized on the issue of the empty wallet to raise reasonable
doubt in the minds of the jurors.
If
the wallet had been emptied by the killer, as the Crown claimed,
why hadn't they introduced evidence to show Feeney had the
money?
The
question hung in the air like the emanations of a flatulent dog.
Because
the evidence had been declared inadmissible as a result of the
Supreme Court ruling, the Crown could only stand mute.
Prosecutor Dianne Wiedemann was bound not to mention what had
really happened.
If
the jury return a guilty verdict it is only because of the
diligent work of the E Division Serious Crime section in
reinvestigating the original murder and cobbling together a new
case.
But,
you see, written instructions have already been issued to the
police in B.C. on the issue of getting search warrants in every
case where they didn't need them before.
Hundreds
of cases have been stayed or dropped outright.
Now,
maybe that helps the agenda of the attorney general trying to
unclog a jammed court system, but it does nothing for the
protection of a society the system was designed to safeguard.
When
"Feeney" was heard by the Supreme Court, Madame
Justice L'Heureux-Dube wrote the minority opinion dissenting
with the late John Sopinka and the majority.
She
wrote: "the exclusion of the evidence would clearly bring
the administration of justice into disrepute."
She
later wrote a thoughtful and considered newspaper opinion piece.
The
nuts and bolts of her argument was that the system had lost its
focus and wasn't doing its job of taking care of the victims.
Too
true.
Unfortunately
she wrote that over two years ago and nothing seems to have
changed.
In
fact, I would argue it has become much worse.
The
judiciary is so caught up worshipping at the altar of the
Charter that it can no longer claim guardianship of society's
needs and rights.
The
outcry in the wake of the Sharpe ruling may finally be the
proverbial straw, forcing the public to wake up to the injustice
being foisted upon us and force a debate that can bring about
the sort of change knocking the judicial "nannies" out
of their Charter-induced stupor.
Is it possible the worm has finally turned?
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