Monday, September 17, 2007 – Page A15

The legal community has been buzzing lately after declarations by several senior judges that the importance of eliminating gun crime outweighs minor police intrusions on constitutional rights. In one such case, a judge claimed that the destruction caused by guns was beyond the imagination of those who wrote the Charter of Rights. In another, a different judge said the reliability of a gun as evidence of guilt supported a decision to overlook the illegal detention of a young Toronto man. Both cases, involving young men in street encounters with the police, display a strong judicial concern for illegal gun use and an enthusiasm for eliminating it. The Globe and Mail agreed, declaring that this straight talk was needed to rescue the Charter from the "ivory tower" where defence counsel and remote academics had been holding it captive.

Not so fast. The legal debate is not about helping the police make safe streets. It's about the role of judges as constitutional guardians. Civil libertarians view the legal rights in the Charter as bedrock rules. If the police deliberately step over the line and violate the Charter, they should expect to lose their case in court. Charter fundamentalists, of whom I am one, like this formulation because it allows the courts to ignore an inadvertent lapse at the same time as it punishes "corner-cutting" police officers who disregard civil liberties. The opposite view, advanced by "pragmatist" judges and law-and-order politicians, sees the Charter as an optional honour code, elastic enough to forgive an enthusiastic police officer who crosses the line. When the officer hits the jackpot and finds a gun, the Constitution bends.

Unquestionably, gun crime is a growing social problem for Canada. For years, we have watched our American neighbours struggle with the problems that handguns bring to cities. In the past three years, a number of senseless shootings of young people in Canada - crimes that happen disproportionately in disadvantaged communities - have commanded national attention. Canadians want solutions to gun violence. But this complex social problem will not be fixed by judges joining the battle, much less by aligning themselves with police officers who violate the Constitution.

While "pro-active policing" and eliminating gun crime are important issues for public debate, our judges should be reluctant to join this conversation. They are not role players in the business of chasing criminals, nor are they cheerleaders for the police. They are responsible for providing clear limits to the police through review of their behaviour. Proponents of "flexible" enforcement of Charter rights tend to ignore the social cost of reducing meaningful limits on arrests, detentions and search tactics.

For example, as the tough-on-crime mayor of New York in the late 1990s, Rudy Giuliani encouraged pro-active policing. Under the so-called "Giuliani rules," the NYPD was encouraged to "stop and frisk" anyone who looked suspicious. Minorities and youths were targeted frequently. Between 1997 and 1999, members of the NYPD Street Crime Unit reported that four out of every five random frisk searches yielded no evidence of any crime whatsoever. Not surprisingly, co-operation with police diminished in communities where the relaxation of police oversight was most keenly felt. The Giuliani experiment is now widely viewed as a failure.

There is a common misconception that this is a debate about legal "technicalities." But I prefer to think of it as a debate about simplicities. The Charter of Rights sets out simple rules concerning the right to be left alone, except when the police have reasonable grounds. One would expect that if the system is working properly, the courts would ordinarily refuse to encourage violations of the Constitution by rewarding the police for violating the simple rules of the Charter.

The police pay attention to what the courts say and respond to the incentives that judicial decisions create. In most "stop and frisk" cases where there is no probable cause, all the evidence the police have was illegally obtained. If the courts consistently tell the police that finding guns and prosecuting their owners is more important than respecting the Constitution, they will get that message. Oversight will give way to a pat on the back.