Charter prevents proper protection for Canadians

Recently the CEO of the Law Society of Manitoba and the president of the Law Society of New Brunswick co-authored an opinion piece that was published in the Free Press (Why the law matters, Oct. 30) which stated that Canadians were in danger of losing some of their constitutional rights.

They gave no evidence to substantiate that claim, and I don’t agree with it, but it certainly got me thinking.

I joined the Winnipeg Police Service in 1970 and the Canadian Charter of Rights and Freedoms was passed in 1982. This Charter protects citizens’ rights from abuse by other citizens, corporate entities, the government and by extension, the police. I remained on the police service for another 22 years and, during that time, observed crime and disorder steadily increase to the point where our downtown has become unsafe for a lone pedestrian to venture after dark. Our core area is even more violent and unsafe to its residents and visitors day and night.

Although Winnipeg ranks highest in Canada for violent crimes per capita, the majority of cities have seen this increase in crime and disorder. Drawing on my experiences as a police officer pre-Charter and post-Charter, I believe that there is a direct correlation between the enactment of the Charter and the rise in crime.

How can I, a mere mortal, make this claim which will by considered blasphemy by the majority of legal minds in this country? Dare we challenge this sacred document? Yes, we can, and we can use this very Charter to protect our right to make that assertion.

I am not proposing that the whole of the Charter is misguided, but I am proposing that there have been court interpretations of certain sections that have caused their benefit to the criminal to far outweigh their value to the honest citizen. I would also propose that if given the opportunity the honest citizen would give up some of their right to protect them from these criminals. I am further proposing that this Charter is better suited to a libertarian form of society rather than our democracy operating under the rule of law.

The Stanford Encyclopedia of Philosophy gives this insight into libertarian philosophy, a family of views in political philosophy. Libertarians take individual freedom as the paramount political value and understand coercion to be the antithesis of that freedom. While people can justifiably be forced to do certain things — most obviously, to refrain from infringing the liberty of others — they cannot be coerced to serve the good of other members of society, nor even their own personal good. It is the last sentence that reflects my view. A libertarian will not give up any portion of their freedom to the benefit of the rest of society.

The New Brunswick Court of Appeal, in the first paragraph of their ruling on the meaning of the rule of law as it applies to Canadian society wrote: Canadian democracy is founded upon the “rule of law.” The expression “law” means a set of rules that governs relationships of citizens with each other; regulates commerce and our lives within the community, and protects people from the unlawful acts of individuals or the state.

You can see the contrast here where in one the individual reigns supreme, as suggested by our Charter, while in the other citizens will respect a “set of rules that govern relationships of citizens with each other.”

Why do I think that our Charter of Rights and Freedoms is to the detriment of the health and safety of our neighbourhoods? I believe its originators, as per libertarian philosophy, put the rights of the individual ahead of the rights of the collective.

What has ensued is that the lives of the average honest citizen going about their daily life saw no positive change, but the life of the criminal did. The criminal could now invoke sections of the Charter to protect themselves from prosecution for crimes committed against those honest members of society.

Here is an example. Police are patrolling in the back lane of an industrial area at two o’clock in the morning and observe a male in dark clothing carrying a black backpack walking down the lane. The police officers’ suspicions are aroused, but they do not stop. The courts have upheld the defence argument that the Charter, in its sections on privacy and freedom of movement, dictates that this man cannot be stopped by police, or as they would put it, detained, and asked to identify himself and justify his being at that location at that time. They cite the Charter’s section on an individual’s right to privacy and their right to freedom of movement.

Let’s now say that just prior to turning into the lane, the police had received a radio message that there had been a break and enter nearby and that the description of the culprit fit that of the man that they see walking in the lane.

The courts have conceded that a reasonable person would be suspicious of this person and that the police can stop him, but here is where it gets interesting. The courts have said that being suspicious is not grounds to search this individual but that the police may pat him down for weapons to ensure their own safety. This exemption does not apply to a search of the backpack.

More interestingly, anything other than a weapon that the officers found on the male, be it drugs or proceeds from the break-in, would not be allowed as evidence as their suspicions did not meet the courts threshold of “reasonable and probable grounds.” If his pockets are full of the proceeds from the break-in, but that is the only evidence that the police have, he must be released. Is he required to identify himself and explain why he is there? No, the police now have the right to ask him but he is under no obligation to reply.

Let’s leave this scenario and go to that of the thousands of warrants on file in the Canadian Police Information Centre data base. Some warrants are for failing to comply with the conditions of release, some for failing to appear in court and some for individuals who have committed crimes but never been arrested. How can the police hope to execute these warrants if a person they suspect might be wanted on a warrant can refuse to identify themselves? And why do our politicians listen to a vocal minority opposed to CCTV cameras with facial recognition capabilities in public places, which could identify those people wanted on warrants?

If you or I are going about our daily business in a public place, we have to realize that every pedestrian, motorist — and police officer, for that matter — can see us. There is no expectation of privacy in a public place.

I believe that the majority of citizens would give up some of their rights to privacy and freedom of movement if it meant that they, and society at large, would be safer.

In my case, if I was the male in the back lane at two in the morning in the first instance, I would not be offended if the police stopped me and asked me to identify myself and explain why I was at that location. I would probably hesitate if they wanted to search my backpack and that is my point — I will give up some if my rights in the public interest, but not all.

After having read this article, there will be some who are offended, and some who are indifferent, but I believe the majority will agree.

Stan Tataryn is a former member of the Winnipeg Police Service.