In a democracy, effective law enforcement and the liberties of the citizens who empower the police are in constant tension. We all want our lives and property protected; we also all want our rights to privacy and to justice, as inscribed in the Charter of Rights and Freedoms, protected.
This tension is not a bad thing that should be eliminated. It constitutes the core and vital force of a democratic polity. Without it, we would live either in a Hobbesian war of each against all, or, at the other extreme, in a police state.
Vancouver Mayor Philip Owen’s resolutions, adopted at Tuesday’s City Council meeting, move us towards the latter. The Mayor wants some future criminal legislation free of limitations on police actions imposed by the Charter. He wants the Minister of Justice to invoke section 33 of the Charter, the notwithstanding clause, in order better to enable the police to investigate crime.
Mayor Owen’s rhetoric gives the impression that his resolutions would effect only criminals, and that the rest of us law abiding citizens, who would never be an accused person, have nothing to fear.
He ignores the fact that anyone can be accused of a crime, either by error, or by a malicious or mischievous person. He also ignores the fact that our whole criminal justice system is founded on the presumption of an accused’s innocence.
Therefore his resolutions, if adopted, would at a single stroke alter the basic presumption of our criminal law and deprive all of us of fundamental Charter protections. The protections for accused persons cannot be suspended without absolutely suspending the rights of all citizens.
Mayor Owen has not made it clear which Charter provisions he would like to cancel, but I presume that his proposals touch on sections 8 through 14, which protect us from unreasonable invasion of privacy, from arbitrary detention and from cruel and unusual punishment, and which ensure our access to a fair trial.
Without these protections the police could barge into the home of any citizen they suspected of a crime, regardless of how improbable or groundless the accusation. They could detain anyone, without evidence of probable guilt. Which of these fundamental protections would Mayor Owen forgo if a malicious citizen were to accuse him of taking kickbacks?
The British Columbia Civil Liberties Association appreciates that the police, being charged with protecting our lives and property, feel impatient with Charter protections that make their jobs more difficult. However, we expect our elected officials to see the world from a larger perspective, and, of course, the judiciary’s defining function is to keep that larger perspective in mind.
It is improper, therefore, for elected government officials to constitute a lobby group, as Mayor Owen would have them do, to try to persuade the judiciary to give more heed to police causes than to those of the general citizenry.
On a practical level, Mayor Owen intimates that the Charter is responsible for an increase in crime. However, according to Statistics Canada, there has been a decline across Canada both in violent crime and in crimes against property. Therefore, the atypical rise in the Vancouver crime rate cannot be attributed to Charter protections.
Much of Vancouver crime is related to drug abuse. It is unlikely that matters would improve if more people were thrown into prison for longer sentences, only to emerge untreated and still drug addicted. The huge amount of money that goes into our prison system could better be spent on the massively underfunded treatment centres. The BCCLA has argued consistently that drug abuse should be regarded as a social and health problem, rather than as a criminal one. Clearly, treating it under the Criminal Code has not worked. It is time to put emphasis on other modes of addressing this problem before jeopardizing the rights of all citizens by distorting the balance between our rights and police power.
Mayor Owen says he wants to right the balance between individual and community values. However, this dichotomy is misleading. Our individual rights and the health of our communities equally depend upon the police to protect us from criminals, and on traditional civil libertarian protections from overly zealous police action.