If Chief Justice Antonio Lamer of the Supreme Court of Canada intends to roll up the sleeves of his judicial robe and get involved in public discussions of judicial decisions, perhaps he might begin with an explanation of the outrageous judgment handed down by the Court last year in the case of Michael Feeney.
In remarks to the Canadian Bar Association on August 23, Lamer said he sometimes feels, "a particularly strong urge to comment publicly about a judgment of my Court, such as when the inconvenience of the requirement to obtain a warrant is described without any mention of the existence of telewarrants, which are available over the phone in a few minutes."
In the Feeney case, warrants were a prime issue. On June 8, 1991, police discovered the body of an 85-year-old man who had been bludgeoned to death in his home in Likely, British Columbia.
Information from several bystanders led police to believe that Feeney was the murderer. Within hours after the crime, they tracked him down to a trailer in which he was living. The officer in charge knocked on the door and said "police." When no one responded, the officer entered the trailer and found Feeney in bed, dressed in a tee shirt splattered with the victim's blood.
Subsequently, Feeney was found guilty by jury of second degree murder. In 1995, this verdict was unanimously upheld by the British Columbia Court of Appeal.
However, on a further appeal to the Supreme Court of Canada, Feeney's conviction was quashed. In a judgment handed down on May 22, 1997, the Court ruled that police were legally obligated to obtain a warrant before entering the trailer to arrest Feeney.
This was a novel doctrine in Canadian law. For hundreds of years, the common law of Canada had provided that police do not need a warrant to make a forced entry into a private dwelling for the purpose of making an arrest, if the officer properly announces his intention to enter the dwelling and has reasonable and probable grounds for believing that a person subject to arrest is inside and has committed an indictable offence.
As recently as 1986, the Supreme Court of Canada explicitly upheld this common law rule in R. v. Landry, but that was of no account to a majority of the Court in Feeney: They simply ignored the precedent. Regardless of what the common law might provide, they held that warrantless arrests in dwelling houses are incompatible with the guarantee against unreasonable searches or seizures in section 8 of the Charter of Rights and Freedoms.
In a judgment written by the late Justice John Sopinka, the Court ruled not only that Feeney's conviction could not be sustained but also that none of the evidence seized by police in his trailer could be admitted into evidence in a new trial. To compound the effrontery, the Court gave Parliament six months to amend the provisions on warrants in the Criminal Code along the lines dictated in Feeney on pain of having thousands of other convictions judicially overturned because of warrantless arrests.
In a stinging dissent in Feeney, Justice Claire L'Heureux-Dubé stated that she, "could not disagree more" with the majority judgment. In her learned opinion, Feeney's Charter rights were not violated. She maintains that with a savage killer on the loose in the community, the police acted altogether reasonably, responsibly and lawfully by arresting Feeney in the trailer.
L'Heureux-Dube also pointed out that exclusion of the evidence obtained by police in the trailer from a new trial would "would clearly bring the administration of justice into disrepute, "because Feeney would probably get off scot free. But not even this dire prospect deterred the Court majority.
"If the exclusion of this evidence is likely to result in an acquittal of the accused as suggested by L'Heureux-Dubé in her reasons," responded Sopinka, "then the Crown is deprived of a conviction based on illegally obtained evidence. Any price to society occasioned by the loss of such a conviction is fully justified in a free and democratic society which is governed by the rule of law."
When did Parliament write this principle into law? The answer is never. On the pretence of interpreting the Charter, the Supreme Court of Canada has decreed on its own that it's better to allow a killer like Feeney to escape justice rather than have him convicted on the basis of evidence obtained by police in violation of a legal technicality of the Court's own devising.
By all means, let's have Lamer try to defend such high-handed judgments in the public arena. By stepping out from behind the shelter of the bench, perhaps he can finally be made to understand that judges who usurp the legislative authority of Parliament are an affront to democracy and the rule of law.