Challenge for new justice minister Virani | John L. Hill

By John L. Hill

Law360 Canada (August 2, 2023, 10:57 AM EDT) --
John L. Hill
John L. Hill
Some people were taken aback last week when Toronto MP Arif Virani was sworn in as Canada’s minister of justice and attorney general, replacing veteran David Lametti. Virani is youthful, with a record in his legal practice as an advocate for human rights issues. 

What can Minister Virani do to improve the system of justice in Canada?

Perhaps a good starting point would be to read the front page of the Aug. 1 edition of the Toronto Star. A front-page article details the latest prosecution that failed because of improper police conduct and riding roughshod over individual rights and freedoms as set out in the Charter.

The newspaper report deals with the judgment handed down by Superior Court Justice Anne Molloy in the case of R. v. Karapetrov 2023 ONSC 4354. Police attended an apartment where Karapetrov’s girlfriend had overdosed on drugs and eventually died. No foul play was suspected.

Police used the emergency call as an excuse to linger on the premises and conduct a warrantless search. Their observations were used to obtain a warrant the following day.

With warrant in hand, the search of the apartment on Jan. 25, 2019, yielded: five prohibited loaded pistols, one of which had an over-capacity magazine containing 31 rounds of ammunition; 469.62 grams of heroin; 855.8 grams of fentanyl; 222.75 grams of heroin/fentanyl mix; 0.81 grams of cocaine; various indicia of drug trafficking (e.g., packaging, a money counter, pill presses, a vacuum bag sealing machine, cutting agents, a scale and a bundle containing $2,880). Karapetrov’s fingerprints were on the slide of one of the firearms seized and on the magazine of one of the other firearms.

The warrantless search on Jan. 24 was a flagrant abuse of the necessity of police attendance to protect individuals from harm and not to collect evidence of wrongdoing (R. v. Godoy [1999] 1 S.C.R. 311). Justice Molloy concluded. “The truth is that these officers were never looking for the substance that [Karapetrov’s girlfriend] had taken in order for them to save her life. They suspected that Mr. Karapetrov was a drug dealer, and they set out to look for evidence to confirm their suspicion, to arrest him.”

Nonetheless, the trial judge did a careful analysis of the factors set out in R. v. Grant 2009 SCC 32 noting that it is almost always the case that society’s interests in a case being adjudicated on its merits will tip the scales in favour of admitting the evidence. The problem with this approach is that while the public may applaud convicting the bad guy, the legal precepts that govern our judicial system are weakened or ignored. Fortunately, Justice Molloy looked beyond the instant gratification the public might enjoy seeing what appeared to be a drug dealer jailed and realized that in the long term, the justice system itself would be put into disrepute if our laws are ignored. She dismissed the case.

The Star account credits defence counsel Kim Schofield with urging compliance with established laws over the desire to punish a wrongdoer. Unfortunately, there have been numerous cases of prosecutions advanced despite police misconduct such as slow disclosure of evidence, racial profiling and an unwarranted no-knock raid on a residence.

The Molloy judgment might be used to convince the new minister of justice that his department will no longer tolerate prosecutions based on tainted evidence. Such a direction might well tend to upset police who have become accustomed to a lenient interpretation of Grant to secure what would be a popular conviction in the public’s eyes.

But the minister might look beyond the laissez-faire attitude some police agencies have taken. He may also wish to look at the conduct of lawyers working in his own department. It has come to my attention that certain Department of Justice counsel have corresponded rudely with defence counsel and dragged cases on that should be resolved. When such correspondence was shown to me, I contacted former minister Lametti requesting that he direct counsel in his department to act with civility. I received no reply.

Justice requires the co-operation of all parties (police, counsel for the prosecution and the defence, and the courts) to apply the law fairly and expeditiously. Hopefully, our new minister of justice will use his office to effect change for the better in our system.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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