Sunday, April 29, 2012

Habeas Corpus Laid to Rest

By Petar Petrovski


Last December the Niagara Regional Police raided a home for a suspected marijuana grow-op. The raid was spearheaded by an NRP detective who jumped to a conclusion that a Brock University professor was running a grow-op from his home based on incorrect information from Hydro One. Unsurprisingly, the raid took place when the accused was away from his home.

As is the case in British common law—the foundation to the Canadian Charter of Rights—the search was a clear violation of the writ of habeus corpus. That is, the professor's rights against an unreasonable search were violated due to incorrect information and unconfirmed evidence. The NRP’s action was completely arbitrary, as the premise, under which it was executed, failed to materialize. 

Furthermore, and more importantly, the reason under which the search warrant was issued was deduced wrongly, as it was based on overgeneralizations rather than careful examination of the specific case at hand. What a misfortune to happen to us ordinary mortals: the police responded to a cry that there is a wolf, but when the search didn't show up the wolf, it is us the taxpayers that need to pay the bill.

As we witness similar raids and actions by the police we see the heavy handiness within the police ranks—a clear sign to a lack of discipline.  We bear witness to R.I.D.E. programs, and other operations which we are told are designed to improve the safety of residents, yet as Dušan has already written, often do little to actually prevent injury. Last December’s raid is a clear display of low professionalism which could harm the relationship between the community and the local police, which in and of itself, may turn out not to be such a tragedy, if this is where our police forces are heading.

In addition to the Brock professor, the other victim of the mentioned raid was the Charter of Rights and Freedom, as the way the search was conducted and the information obtained amounted to a little more than paying lip service to our supreme law. Canadians who wish to live in a society where the rule of law reigns should be very worried about our law enforcement’s approach to conducting their business. For, as Ludwig von Mises opined in Bureaucracy,
[p]rimacy of the law means that no judge or officeholder has the right to interfere with any individual's affairs or conditions unless a valid law requires or empowers him to do so. Nulla poena sine lege, no punishment unless ordered by a law. It is precisely the inability of the Nazis to understand the importance of this fundamental principle that qualifies them as antidemocratic. In the totalitarian system of Hitler Germany the judge has to come to his decision according to das gesunde Volksempfinden, i.e., in accordance with the sound feelings of the people. As the judge himself has to decide what the sound feelings of the people are, he is sovereign on his bench like the chieftain of a primitive tribe. (p. 42)

The law prescribes actions quite different to those take by the NRP. The search should have been executed when the owner of the house was present with his lawyer so there wouldn't be mistrust later if the intelligence proved correct and marijuana plants were indeed being grown. If guilty of the “crime” the professor would not be able later to claim that the evidence was planted by the police. During the raid NRP officers should have been careful so as not to damage certain private belongings. Instead, as a result of the NRP’s damage to the private property of an innocent man, “Joe Taxpayer” needs to cover a sum of $2mil that the Brock professor claims as damage in his lawsuit.

According to the Charter of Rights and Freedoms, every citizen of Canada has his home as his safe heaven. Police searches are allowed, but only with a court order where a judge considers the specific evidence provided in a narrow fashion. In this particular case, as with many others, the sanctity of an individual residence was been trampled on.

To add insult to injury, the NRP’s disciplinary board has cleared the detective from any wrongdoing. This action will further erode public confidence. True enough, many people will side with the police at the beginning; many will support the detective, though, not for long. The news of the Windsor policeman beating a legally blind doctor and the conduct of Toronto police during the G20 summit in 2010, to name two instances, are sure to speed up the process of cops losing the public’s favour.

The professor's home, person and reputation suffered injury at the hands of those he pays to protect them. What recourse is left for the innocent, if a member of a reputable profession is not given the basic presumption of innocent till proven guilty? What recourse is left for the innocent when those who he pays to protect him vandalize him home and walk away, without even having the common courtesy to apologize and repair what they have damaged?  

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