In response to my Friday column Cops Screw Up: Drug Dealer Jermaine Barrows-Taylor Escapes Illegal Handgun Conviction, one reader shared his frustration with this case specifically, as well as these types of cases in general.

I do not understand why police screwups result in criminals going free.

If police illegally search a vehicle and find a body, does the driver get a free pass for murder?

Why can’t we initiate a system where the police are punished for their screw-up but the criminal gets charged with the appropriate criminal offence as well?

What am I missing, Christopher?

First, in this specific case the legality of the search was not challenged. The issue at play was our common law principle of the presumption of innocence as spelled out in Section 11(d) of the Charter of Rights and Freedoms, which states:

11. Any person charged with an offence has the right

• (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

When Toronto Police Services Constable Gill stopped the vehicle driven by drug dealer Jermaine Barrows-Taylor, there were two other occupants with him.

While it is not probable one of those two individuals owned the gun and ammunition found under the driver’s seat, it is possible they were.

When Constable Gill decided there was no reason “to continue the arrests” of the two passengers before definitively ruling them out as the owner of the illegal handgun, he failed to collect the evidence required to prove Barrows-Taylor’s guilt beyond a reasonable doubt.

He assumed the illegal handgun belonged to Barrows-Taylor because he so readily admitted to owning the drugs.

An accused’s guilt must be proven beyond a reasonable doubt.  By not investigating the two passengers fully, Constable Gill made it impossible for a judge to reach that high bar, a point Justice Lipson made clear in his decision.

[33]                  Of course, it is likely, even highly likely, that the black bag and its contents belonged to Mr. Barrows-Taylor. He was the driver. The bag with the gun and ammunition was under his seat. He admitted he was in possession of the drugs and that the possession was for the purpose of trafficking. It is an accepted fact of life that drug traffickers often possess guns to protect themselves and their drug supply.

[34]                  However, the police investigation was incomplete in a crucial way. Other potential suspects who were in a position to place the gun under the driver’s seat were not eliminated. As a result, the Crown was unable to negative other reasonable possibilities consistent with the innocence of the accused. Proof beyond a reasonable doubt requires that the Crown be able to do so. That was not done in this case. A reasonable doubt can result from the absence of evidence, which is the case here.

While we may not like it at times, we want this bar set high. If we are to deny a person their liberty by incarcerating them, we must be sure we convict the correct person.

Second, generally these types of cases hinge on an illegal search by police, for which the remedy is found in Section 24 of the Charter of Rights and Freedoms:

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

When a police search is challenged on constitutional grounds, the onus is on the Crown to prove the search was legal.

When the Crown cannot prove the search was legal, Section 24(2) says the only way the evidence can be allowed is if excluding it would “bring the administration of justice into disrepute.”

I addressed this issue earlier this year in my commentary “Warrantless Search Sets Illegal Sub-Machine Gun Owner Free” where members of the Toronto Police Service violated the rights of Elvis Iniguez by searching his home illegally.

In R. v. Iniguez, Justice Heather McArthur ruled our Charter rights are more important than a police officer’s good intentions. It’s a great ruling.

[3]               I find that the evidence must be excluded.  The officers searched Mr. Iniguez’s home without his informed consent and failed to advise him of his right to counsel immediately upon detention.

The officers did not breach Mr. Iniguez’s rights because they thought he was guilty and were over-zealous in their pursuit of evidence.  Rather, they did not believe that they would find any evidence and they were anxious to end their night-shift and go home.

As a result, they took a shortcut with Mr. Iniguez’s constitutional rights as a matter of convenience.

But for the fact that the officers found evidence, the violation of Mr. Iniguez’s Charter rights would have gone unidentified and unredressed.

In my view, the long-term interests of the administration of justice would be significantly undermined if the evidence was admitted.

Even when the police search you, your vehicle or your home illegally, it doesn’t automatically mean you walk free.

But it might.

In the case of my friend’s comment at the top of the page, if a person was stopped by police who then illegally searched their vehicle and discover a dead body in the trunk, Section 24(2) may or may not save them.

It would come down to the totality of the specific circumstances of the case, as it should.

If you’re interested in reading more about illegal police searches and their results, I encourage you to check out my commentaries on Unreasonable Search and Seizure.

Punishing Police for Their Mistakes

In the case I wrote about Friday, the investigation was sloppy and incomplete. While this is a mistake, it’s not one for which these constables can or should be punished.

This ruling was what I call a “teachable moment” for Constable Gill specifically and for the Toronto Police Service in general.

I write about punishments in the category titled Abuse of Police Authority. Check it out if you’re interested in reading more on these abuses and the punishments meted out by the courts and police accountability tribunals.

An Uncomfortable Balancing Act

These two cases highlight an ongoing and challenging balance – the rights of the individual vs. public safety and the perception our justice system is fair and treats everyone equally.

We know the justice system does not treat everyone equally, as this case proves, but equality before the law is still the ideal we all strive to achieve.

We want murderers put in prison and, yes, that can include those times when their rights were violated.

At the same time, those of us who aren’t murderers want our Charter rights protected at all costs. We insist the government must obey the law, which includes protecting our rights under the Canadian Charter of Rights and Freedoms.

We don’t want the government to send us to prison because we “might” be guilty.

We want the government to prove it beyond a reasonable doubt.

If agents of the government are to search our persons, our vehicles and our homes, they must have probable cause for doing so and, absent compelling and extenuating circumstances, all evidence collected during their illegal searches must be excluded from court.