The Ontario Court of Appeal yesterday approved the use of evidence obtained through flagrant police misconduct, saying any black eye caused to the justice system is outweighed by public interest in prosecuting a serious crime.

In a decision that even one of their fellow judges finds intolerable, a majority of the court upheld a trial judge's decision to admit evidence of 35 kilos of cocaine found in Bradley Harrison's rented SUV – despite the judge's finding an OPP officer had no legal grounds to stop the vehicle, seriously infringed the Toronto man's Charter rights and misled a court while trying to justify his actions.

The 2-1 ruling is the latest in a line of recent decisions in which the court has been accused of weakening Charter protections by refusing to exclude evidence obtained unlawfully. In a case last fall involving a gun found in a backpack at Westview Centennial Secondary School, the court said throwing out reliable evidence because of Charter violations must be balanced against public concerns about escalating gun violence.

In their judgment yesterday, Associate Chief Justice Dennis O'Connor and Justice James MacPherson rejected defence lawyer Marie Henein's contention that admitting the evidence obtained in violation of Harrison's Charter rights would mean the judiciary is condoning police misconduct.

In weighing what's worse – admitting tainted evidence or allowing serious crime to go unpunished – the majority concluded the public, at least in this case, is willing to put up with the significant Charter violations committed by OPP Constable Brian Bertoncello.

"We do not suggest that this is an easy case – far from it," they wrote. "This is a close call ..."

"We believe that, without minimizing the seriousness of the police officer's conduct or in any way condoning it, it was open to the trial judge to find that reasonable members of the community could well conclude that the exclusion of 77 pounds of cocaine, with a street value of several millions of dollars, and the potential to cause serious grief and misery to many, would bring the administration of justice into greater disrepute than would its admission," O'Connor and MacPherson said in their decision.

Bertoncello's misconduct didn't result from any systemic problem, OPP policy or directions from a senior officer, which reduces the seriousness of the breaches of Harrison's rights, they said.

But in a sharply worded dissent, Justice Eleanore Cronk accused the majority of hiding behind a "shield" of deference often accorded to trial judges by appeal courts. Except, in this case, O'Connor and MacPherson aren't really yielding to Justice Norman Karam's conclusions, Cronk charged. In reality, they're spinning or minimizing the trial judge's findings, to make Bertoncello's misconduct seem far less serious than it was, she suggested.

"I do not accept that police misconduct is reduced to constitutional insignificance, or that its effects are minor or de minimus, because only one police officer, acting on his own, knowingly violates a citizen's constitutional rights,' said Cronk.

"The protections afforded by the Charter are not limited to cases where systemic, institutional or premeditated police misconduct or state action is in issue," she said.

Alan Young, a professor at Osgoode Hall Law School, said by assessing police conduct to see if Charter violations stem from any systemic failings, the court has now "set the bar so high" that exclusion of tainted evidence "will be a rarity."

"There's no question that this court and other courts are losing interest in the whole enterprise of excluding evidence," he said.

Harrison, accompanied by a friend named Sean Friesen, was driving from Vancouver to Toronto when he was stopped near Kirkland Lake in October 2004. Bertoncello said he decided to pull over the SUV because it was missing a front licence plate, though he knew a front plate wasn't required in Alberta, where it was licensed.

Bertoncello testified he went ahead and pulled the SUV over because the emergency lights on his cruiser were flashing and cars were behind him, he felt his "integrity" as a police officer was on the line.

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Harrison couldn't produce a driver's licence, but gave Bertoncello his name and address. Running them through a computer, the officer discovered Harrison's licence was suspended, and arrested him.

Bertoncello then began a vehicle search, though he had no legal grounds for doing so. He claimed he was looking for Harrison's licence, but the court was told he didn't bother looking through clothes on the back seat. He went directly for two boxes at the back, asking, the men if there were any drugs inside, again without grounds for doing so.

Bertoncello the officer testified he asked the question for "personal safety" reasons – he didn't want to get pricked by a needle or accidentally pull the trigger of a gun. Inside the boxes were bricks of cocaine.