Oh, Canada, Chapter 14 - Charter Gone Mad
Canadian Charter of Rights advocates and its self proclaimed defender, Prime Minister Paul Martin, should pause and reflect on the consequences of 23 years of the interpretation of the Charter by Canadian judges. The recent British Columbia case resulting in the acquittal of Giovanni Ciliberto for the murder of Brian Paskalidis, serves as a painful and frightening reminder of the failure of the Charter to protect those who really need protection. It also serves notice of how far into the abyss of moral relativism our society has descended.
The facts of the case are that on an afternoon in October 2002, thirty five year old Brian Paskalidis was walking up the driveway of his mother’s home in Burnaby when he was shot 12 times in the chest with bullets from an attack rifle. Within days of the murder, the Paskalidis family was convinced the killer was Ciliberto, a mentally disturbed thirty five year old who had known Brian since the two of them were four years old. The family reasoned that Brian had recently grown concerned about Ciliberto’s erratic behaviour and had begun to separate himself from him. In his psychotic state, Ciliberto wreaked a terrible form of retribution against Brian for withdrawing from the friendship.
The police investigation was unable to unearth any hard evidence linking Ciliberto to the crime. The family lived in fear that if Ciliberto had killed Brian for no reason, what was to prevent him from doing the same to one of them.
In September 2003 the family learned the Ciliberto was planning to leave the country. They advised the RCMP and in an effort to try and extract a confession from Ciliberto, they arrested him.
Ciliberto was detained for 5 hours and interrogated at the Burnaby detachment. During that time he told the police 49 times that he wished to remain silent, on the advice of counsel. The police persisted in questioning him despite this.
The next day the police accepted the request of Brian’s parents to meet Ciliberto face to face and to plead with him to end their torment and to admit to his crime. During this emotional meeting, which was videotaped by the police, Ciliberto made several tearful admissions to the parents and apologized to them for having killed Brian.
Ciliberto was charged with murder and his trial was held last week before Mr. Justice Paul Williamson. The judge refused to admit into evidence the confession and the videotape. The videotape also showed a police officer making repeated emotional appeals to Ciliberto to confess with the officer at one point hugging the tearful suspect.
Mr. Justice Williamson ruled that Ciliberto’s constitutional rights had been violated and he ordered the evidence to be excluded. He ruled the police had created an atmosphere of oppression during their interviews. Without the confession the Crown had no case and Ciliberto walked out of court a free man.
The relevant sections of the Charter of Rights and Freedoms are:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
a) to be informed promptly of the reasons therefor;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
11. Any person charged with an offence has the right
a) to be informed without unreasonable delay of the specific offence;
b) to be tried within a reasonable time;
c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
e) not to be denied reasonable bail without just cause;
f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Section 24 (1) is the enforcement section of the Charter. If a person asserts his rights have been infringed or denied he may apply to the court for a remedy and the court has the discretion to invoke a remedy that is “appropriate and just in the circumstances”. Section 24(2) then states that once a court rules that evidence has been obtained as a result of actions which infringed or denied an accused’s rights, the defence must then establish “having regard to all the circumstances” that the admission of the evidence would bring the administration of justice into disrepute. If so satisfied, the judge shall exclude the evidence.
In summary, Canadians have certain rights against unwarranted detention, and against forced self-incrimination. Brian Paskalidis also had the right to life and liberty and security of his person. Justice Williamson was required to look at all the circumstances surrounding Ciliberto's allegation that his rights have been infringed or denied. Surely a paramount circumstance was the patent fact of a proven and pre-existing violation of Brian's most fundamental human right, the right to life.
I make no argument against the judge's finding that Ciliberto's right to remain silent may have been infringed upon. My concern is with his conclusion as to what the consequence should be “having regard to all the circumstances”. In law the onus remained on Ciliberto to produce evidence that the use of the tainted evidence against him would bring the administration of justice into disrepute. Only upon so finding can the judge rule that the evidence should be be withheld.
How have we arrived at the point where the rights of an accused to be spared detention for several hours during which he is subjected to nothing more oppressive than persistent questioning and moral suasion, are found to trump the rights of a murder victim to life and liberty, and to the rights of society to bring to justice someone who wantonly and senselessly took a human life. To trump the rights of parents and loved ones of the victim to be spared the constant fear that having killed once, the killer might kill again?
How can it be right and just for a judge to conclude that it would bring the administration of justice into disrepute to allow a jury to see the videotape of Ciliberto's interrogation showing the investigator’s impassioned plea for the truth, a plea accompanied not by violence or threats but by hugs; to see and hear the emotional supplication of Brian's parents as they plead with Ciliberto to admit to his crime and unburden his guilty conscience; to see the murderer’s tears of remorse, to hear and see the anguish of his confession and his apology and plea for forgiveness?
Is it not patently obvious that what truly brings the administration of justice into disrepute is to permit Ciliberto to walk away a free man?
Have we gone mad? Have we become so dismissive of the rights of victims and those who loved them and so enthralled by the protection of the rights of individuals to be spared the rigours of a long interrogation, that we are content to deprive the police of the most basic tool of investigation, the use of moral suasion in an effort to induce an accused to find the moral courage to admit his wrong and to seek forgiveness?
How have we come to the point that society is content to have one judge, harnessed as he or she is by the web of legal precedent, and not a jury of twelve ordinary citizens, determine what is appropriate and just under the circumstances?
Have we become so soft as a society, so blinded by moral relativism, that we cannot see the absurdity of a decision like this one, that we cannot feel the pain and anguish of Brian’s parents. Having looked into the eyes of their son’s killer, having seen him break down in tears and admit his crime, and plead for their forgiveness; they must now endure seeing him on the street, a free man unencumbered by any societal restraint, free to perhaps kill again. Have we lost the meaning of justice?
Society cannot function without coercion which means nothing more than "to compel to an act or choice." Parents cannot teach their children how to make moral decisions without coercion. The human condition requires that there be coercion in order to enforce and uphold a rule of law, failing which we have anarchy and the rule of the jungle.
Civil libertarians will haul out the bromide about how it is better to let 10 guilty men walk free than to convict one innocent. Tell that to any parent, wife, brother or sister of a murder victim who must live with the knowledge that the killer of their loved one walks the streets a free man because his confession came about as a result of being deprived of his freedom for a few hours.
James Fitzjames Stephen the English jurist whose 1878 codification of the English Penal Code was an important template for Canada’s first criminal code would be anguished by the evolution of Canadian criminal law. In his seminal work, Liberty, Equality and Fraternity, he wrote:
Men are so constructed that whatever theory as to goodness and badness we choose to adopt, there are and always will be in the world an enormous mass of bad and indifferent people—people who deliberately do all sorts of things which they ought not to do, and leave undone all sorts of things which they ought to do. Estimate the proportion of men and women who are selfish, sensual, frivolous, idle, absolutely commonplace and wrapped in the smallest of petty routines, and consider how far the freest of free discussion is likely to improve them. The only way by which it is practically possible to act upon them is by compulsion or restraint. Whether it is worthwhile to apply to them both or either I do not now inquire; I confine myself only to saying that the utmost conceivable liberty which could be bestowed upon them would not in the least degree tend to improve them.
Canada in the 21st century has long forgotten Stephen’s wise perception of the human condition. We have forgotten the inherent venality of the human spirit in our mad rush to uphold the “rights and freedoms” of fallen mankind. We have lost our appetite for the use of reasonable compulsion and restraint in order to induce correct behaviour. Instead, we permit the institutionalized perpetuation of a grotesquery such as Ciliberto’s acquittal.
Stephen also wrote that "the laws which punish murder or theft are substitutes for private vengeance, which, in the absence of law, would punish those crimes more severely, though in a less regular manner."
Consider how much poorer and unsafe our society will become if confidence is lost in the effectivess or willingness of the legal system to invoke justice.
The facts of the case are that on an afternoon in October 2002, thirty five year old Brian Paskalidis was walking up the driveway of his mother’s home in Burnaby when he was shot 12 times in the chest with bullets from an attack rifle. Within days of the murder, the Paskalidis family was convinced the killer was Ciliberto, a mentally disturbed thirty five year old who had known Brian since the two of them were four years old. The family reasoned that Brian had recently grown concerned about Ciliberto’s erratic behaviour and had begun to separate himself from him. In his psychotic state, Ciliberto wreaked a terrible form of retribution against Brian for withdrawing from the friendship.
The police investigation was unable to unearth any hard evidence linking Ciliberto to the crime. The family lived in fear that if Ciliberto had killed Brian for no reason, what was to prevent him from doing the same to one of them.
In September 2003 the family learned the Ciliberto was planning to leave the country. They advised the RCMP and in an effort to try and extract a confession from Ciliberto, they arrested him.
Ciliberto was detained for 5 hours and interrogated at the Burnaby detachment. During that time he told the police 49 times that he wished to remain silent, on the advice of counsel. The police persisted in questioning him despite this.
The next day the police accepted the request of Brian’s parents to meet Ciliberto face to face and to plead with him to end their torment and to admit to his crime. During this emotional meeting, which was videotaped by the police, Ciliberto made several tearful admissions to the parents and apologized to them for having killed Brian.
Ciliberto was charged with murder and his trial was held last week before Mr. Justice Paul Williamson. The judge refused to admit into evidence the confession and the videotape. The videotape also showed a police officer making repeated emotional appeals to Ciliberto to confess with the officer at one point hugging the tearful suspect.
Mr. Justice Williamson ruled that Ciliberto’s constitutional rights had been violated and he ordered the evidence to be excluded. He ruled the police had created an atmosphere of oppression during their interviews. Without the confession the Crown had no case and Ciliberto walked out of court a free man.
The relevant sections of the Charter of Rights and Freedoms are:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
a) to be informed promptly of the reasons therefor;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
11. Any person charged with an offence has the right
a) to be informed without unreasonable delay of the specific offence;
b) to be tried within a reasonable time;
c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
e) not to be denied reasonable bail without just cause;
f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Section 24 (1) is the enforcement section of the Charter. If a person asserts his rights have been infringed or denied he may apply to the court for a remedy and the court has the discretion to invoke a remedy that is “appropriate and just in the circumstances”. Section 24(2) then states that once a court rules that evidence has been obtained as a result of actions which infringed or denied an accused’s rights, the defence must then establish “having regard to all the circumstances” that the admission of the evidence would bring the administration of justice into disrepute. If so satisfied, the judge shall exclude the evidence.
In summary, Canadians have certain rights against unwarranted detention, and against forced self-incrimination. Brian Paskalidis also had the right to life and liberty and security of his person. Justice Williamson was required to look at all the circumstances surrounding Ciliberto's allegation that his rights have been infringed or denied. Surely a paramount circumstance was the patent fact of a proven and pre-existing violation of Brian's most fundamental human right, the right to life.
I make no argument against the judge's finding that Ciliberto's right to remain silent may have been infringed upon. My concern is with his conclusion as to what the consequence should be “having regard to all the circumstances”. In law the onus remained on Ciliberto to produce evidence that the use of the tainted evidence against him would bring the administration of justice into disrepute. Only upon so finding can the judge rule that the evidence should be be withheld.
How have we arrived at the point where the rights of an accused to be spared detention for several hours during which he is subjected to nothing more oppressive than persistent questioning and moral suasion, are found to trump the rights of a murder victim to life and liberty, and to the rights of society to bring to justice someone who wantonly and senselessly took a human life. To trump the rights of parents and loved ones of the victim to be spared the constant fear that having killed once, the killer might kill again?
How can it be right and just for a judge to conclude that it would bring the administration of justice into disrepute to allow a jury to see the videotape of Ciliberto's interrogation showing the investigator’s impassioned plea for the truth, a plea accompanied not by violence or threats but by hugs; to see and hear the emotional supplication of Brian's parents as they plead with Ciliberto to admit to his crime and unburden his guilty conscience; to see the murderer’s tears of remorse, to hear and see the anguish of his confession and his apology and plea for forgiveness?
Is it not patently obvious that what truly brings the administration of justice into disrepute is to permit Ciliberto to walk away a free man?
Have we gone mad? Have we become so dismissive of the rights of victims and those who loved them and so enthralled by the protection of the rights of individuals to be spared the rigours of a long interrogation, that we are content to deprive the police of the most basic tool of investigation, the use of moral suasion in an effort to induce an accused to find the moral courage to admit his wrong and to seek forgiveness?
How have we come to the point that society is content to have one judge, harnessed as he or she is by the web of legal precedent, and not a jury of twelve ordinary citizens, determine what is appropriate and just under the circumstances?
Have we become so soft as a society, so blinded by moral relativism, that we cannot see the absurdity of a decision like this one, that we cannot feel the pain and anguish of Brian’s parents. Having looked into the eyes of their son’s killer, having seen him break down in tears and admit his crime, and plead for their forgiveness; they must now endure seeing him on the street, a free man unencumbered by any societal restraint, free to perhaps kill again. Have we lost the meaning of justice?
Society cannot function without coercion which means nothing more than "to compel to an act or choice." Parents cannot teach their children how to make moral decisions without coercion. The human condition requires that there be coercion in order to enforce and uphold a rule of law, failing which we have anarchy and the rule of the jungle.
Civil libertarians will haul out the bromide about how it is better to let 10 guilty men walk free than to convict one innocent. Tell that to any parent, wife, brother or sister of a murder victim who must live with the knowledge that the killer of their loved one walks the streets a free man because his confession came about as a result of being deprived of his freedom for a few hours.
James Fitzjames Stephen the English jurist whose 1878 codification of the English Penal Code was an important template for Canada’s first criminal code would be anguished by the evolution of Canadian criminal law. In his seminal work, Liberty, Equality and Fraternity, he wrote:
Men are so constructed that whatever theory as to goodness and badness we choose to adopt, there are and always will be in the world an enormous mass of bad and indifferent people—people who deliberately do all sorts of things which they ought not to do, and leave undone all sorts of things which they ought to do. Estimate the proportion of men and women who are selfish, sensual, frivolous, idle, absolutely commonplace and wrapped in the smallest of petty routines, and consider how far the freest of free discussion is likely to improve them. The only way by which it is practically possible to act upon them is by compulsion or restraint. Whether it is worthwhile to apply to them both or either I do not now inquire; I confine myself only to saying that the utmost conceivable liberty which could be bestowed upon them would not in the least degree tend to improve them.
Canada in the 21st century has long forgotten Stephen’s wise perception of the human condition. We have forgotten the inherent venality of the human spirit in our mad rush to uphold the “rights and freedoms” of fallen mankind. We have lost our appetite for the use of reasonable compulsion and restraint in order to induce correct behaviour. Instead, we permit the institutionalized perpetuation of a grotesquery such as Ciliberto’s acquittal.
Stephen also wrote that "the laws which punish murder or theft are substitutes for private vengeance, which, in the absence of law, would punish those crimes more severely, though in a less regular manner."
Consider how much poorer and unsafe our society will become if confidence is lost in the effectivess or willingness of the legal system to invoke justice.
posted by Ben Buan | 12:17 p.m.
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