Note: This article has been edited to correct the given name of Bradley Harrison.

A judge of the Ontario Court of Appeal said he worries Canadians will treat the Charter of Rights and Freedoms with disdain if courts routinely throw out evidence of serious crime because it has been obtained through police misconduct.

Speaking at a legal symposium in Toronto yesterday, Justice Michael Moldaver said it's time for courts to develop a more "nuanced" approach to deciding whether a prosecution should grind to a halt when police break the rules.

"Believe it or not, I worry about the public loss of respect for the Charter," Moldaver said while moderating a panel discussion at the Ontario Bar Association's annual conference.

The Charter's exclusionary clause – sec. 24.(2) – allows judges to throw out tainted evidence if its admission at a trial would bring the administration of justice into "disrepute."

Doing so often spells the end of a case.

But Moldaver questioned what the justice system and society accomplishes by excluding evidence such as guns or drugs when the officer misconduct that led to its seizure wasn't standard operating procedure for a police force, but simply the actions of a rogue investigator.

"What are we doing?" he asked.

But Frank Addario, president of the Criminal Lawyers' Association, said unless judges are prepared to make the tough calls and throw out evidence obtained in violation of a suspect's constitutional rights, there's little chance police will stop breaking the law.

Instead, "the message (from the courts) is, 'Whenever police are going to investigate a serious crime, take chances with civil liberties, cut corners – if you hit the jackpot, we will reward you by admitting the evidence,' " he said.

So far, police forces have shown little appetite for disciplining officers who run afoul of the Charter, Addario added, pointing to the case of Bradley Harrison, who was pulled over on the Trans-Canada Highway near Kenora in 2004 with 35 kilograms of cocaine hidden in his SUV.

An Ontario Provincial Police constable had no grounds for stopping Harrison and even lied in court about the incident, yet there's no evidence he was ever disciplined, Addario noted.

In a 2-1 decision last year, Associate Chief Justice Dennis O'Connor and Justice James MacPherson of the Ontario Court of Appeal approved the trial judge's decision to admit the evidence, arguing in part that while the officer's conduct was wrong, there was no indication it was the result of a systemic OPP problem. Justice Eleanore Cronk dissented, accusing the majority of minimizing what the officer did.

The case is now before the Supreme Court of Canada.

Yesterday, Moldaver said his judicial colleagues who wrote the majority decision in the Harrison case may well have decided to exclude the evidence if, instead of stopping Harrison on the highway, the officer had "busted into this person's house unannounced and done this."

"Maybe we'd say that's the kind of egregious conduct our society simply will not tolerate and the evidence is going out. ... Maybe if the police officer threatened, or extorted or whatever, maybe we will say we will not live in a country like this."

Part of the problem for police officers trying to stay within the bounds of the law is that the Supreme Court and Parliament have devised a confusing "labyrinth" of rules that vary according to the type of search being conducted, said Crown counsel Michal Fairburn, another panelist.

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Fairburn and Moldaver said it's time for Parliament to consolidate the rules into more user-friendly guidelines that both officers and judges can better understand.

Addario said all judges also have an obligation to educate the public when a decision to throw out evidence ends a prosecution.

In their decisions, he said, judges should say: "If you are angry about the result in this case, you should not be angry at the defendant or the court. You should be angry at the police officer who made the deliberate decision to ignore the Charter."