Perhaps Winnipeg lawyer Greg Brodsky chose the wrong case to try this defence. The cop who was shot was a sympathetic figure and the accused were rendered cold-blooded by poverty, alcohol, and whatever it is that turns desperate young people into menaces to society. Nonetheless, Brodsky made some important observations during a time when we are hearing regular reports of police jumping to extreme measures in situations where life could be preserved.
The automatic use of first-degree-murder charges for anyone who kills a police officer is justifiable because "an attack on a police officer is an attack on society itself," a Manitoba judge ruled yesterday.
The ruling removed a cloud of doubt from an issue of great importance to police officers -- the added protection they believe comes from having the ultimate penalty in Canadian law apply to killers of police.
The charge was challenged by two Albertans, Robert Marlo Sand and Laurie Ann Bell, who face trial in the 2001 murder of RCMP Constable Dennis Strongquill.
The 52-year-old father of six died when a gun battle erupted after he pulled over a car in a routine traffic stop.
"Police officers are the front line of society's defence against crime," Mr. Justice John Menzies of the Court of Queen's Bench said in his judgment.
"I agree with the comment of [Crown prosecutor Shawn Greenberg] that an attack on a police officer is an attack on society itself. Parliament has deemed it necessary to clearly denounce the murder of a police officer."
Under the Criminal Code of Canada, first-degree murder carries a punishment of life imprisonment without parole eligibility for at least 25 years.
Defence lawyer Greg Brodsky argued during the challenge that the mandatory murder charge is a violation of the constitutional right to life, liberty and security of the person, as well as the right to be free of arbitrary detention.
He argued it is unfair to protect police using harsh penalties that are not available in the case of other professionals, such as firefighters, lawyers and judges.
Mr. Brodsky maintained that the automatic penalty could lead to conviction if a stray bullet were to hit a parking-enforcement officer or a police administrator.
However, Ms. Greenberg countered that Mr. Brodsky's point was irrelevant and speculative, since Constable Strongquill had been killed while he was on duty and had pulled a car over.
"The defence counsel suggested that the section went too far because it would capture a Mountie on the Musical Ride, but I haven't yet heard of an attack on a Mountie during one of these performances," Ms. Greenberg said in an interview yesterday.
She noted that the Criminal Code section that was challenged does not apply to the murder of an off-duty police officer.
"It applies to the murder of an officer 'acting in the course of his duties,'" she said. "It is the killing of an officer attempting to arrest a suspect or to prevent the commission of an offence that merits additional denunciation."
Courts in Alberta, Quebec and Ontario have heard similar challenges, with the same result, though those rulings were issued 10 or more years ago.
Pretrial arguments on several other points are scheduled for March 24. Jury selection is to begin in April in Brandon.
BRANDON - The judge presiding over the case of a Mountie who was shot and killed reserved judgment Wednesday on the defence's challenge to the law declaring that such killings are automatically considered first-degree murder.
For the first time in a decade, a lawyer in a Canadian courtroom had argued that it was unfair to protect police officers with stiffer penalties when other officials -such as judges - are not given the same protection.
The constitutional arguments come before the trial of two people accused of killing 52-year-old RCMP Constable Dennis Strongquill in December, 2001, near Russell, Man.
Robert Marlo Sand, 23, and Laurie Ann Bell, 20, both of Alberta, are charged with first-degree murder in the shooting. The Criminal Code mandates that any killing of a police officer in the line of duty automatically counts as first-degree murder.
Earlier on Wednesday, Mr. Justice John Menzies of the Manitoba Court of Queen's Bench interrogated defence lawyer Greg Brodsky as he began to lay out his constitutional argument.
"Is a police officer's life worth more jail time?" Mr. Brodsky asked, noting that judges do not receive the same treatment.
"Maybe we're not held in as high esteem as police officers," Judge Menzies responded, chuckling.
But he then pointed at the sheriffs guarding the two accused in the courtroom and added on a more serious note: "I'm secondary. They have to get past them to get at me."
Mr. Brodsky also argued that not all police officers have first-hand contact with dangerous suspects. Administration staff or wire-tap operators, for instance, do not face the same dangers.
"This is not comic books. This is not cartoon life," the lawyer said.
Constitutional arguments in the case are public, but a publication ban protects the agreed statement of facts of allegations against the accused and their past histories, unless it is already in the public domain.
Ms. Bell and Mr. Sand are expected to stand trial in March.
In her rebuttal to Mr. Brodsky's arguments, Crown attorney Shawn Greenberg argued that police officers are more vulnerable to attack than the general public and deserve special protections.
"All human life is valued equally, but there is a need in the case of police officers for extra deterrents and denounciations," she said.
"An attack on a police officer is an attack on our ability to enforce the law. It destabilizes the entire system."