Retired judge welcomed back at dinner Speaks on rights and the law

Fort Frances native Justice James Fontana was in town Saturday evening as guest speaker for the local Knights of Columbus’ “Law Enforcement Night” at St. Mary’s Church.
With his 40-plus years of experience in the courtroom, Justice Fontana spoke about how the Canadian Charter of Rights and Freedoms affects law enforcement—and why some case are thrown out, much the public’s chagrin, when a suspect is seemingly guilty.
While the charter was part of the 1982 Constitution Act, 1984 “was an auspicious year for Canadian law enforcement,” he began.
Justice Fontana noted it was in 1984 when something startling happened with a handful of cases. In one, a drug dealer in British Columbia who tried to swallow a balloon full of drugs was stopped from doing so after being choked by police.
In another, a man suspected of killing senior citizens near the St. Lawrence River was followed by police using a tracking device planted on his car.
When a Bell microwave tower was knocked over, police found the suspect, with tools in his car he used to sabotage the tower, at the scene of the crime.
In a third, a suspected criminal had his blood extracted by police to match him to a crime while in a fourth, a man growing marijuana on the Prairies was busted by police using infrared radar devices.
And in a fifth, a man in Toronto known for having an illegal gambling operation was caught by police after installed surveillance equipment in a hotel room.
“In all these cases, the individuals went free, or at best sent back for a new trial, all because the evidence was found faulty,” said Justice Fontana.
“The rule of the law had been [that] evidence is admissible in court no matter how it was obtained, as long as it was relevant to the case,” he explained.
“What changed this? The Canadian Charter of Rights and Freedoms.”
Justice Fontana said two sections in the charter have led to many cases being thrown out, thus resulting in police and Crown Attorneys having to work much harder to prove the evidence in a case was obtained according to the charter.
He noted in Section 8, where it states, “Everyone has the right to be secure against unreasonable search and seizure,” it does not say “unlawful,” but “unreasonable”—a “pretty subjective term,” according to Justice Fontana.
And in Section 24 (2), where it states, “Where in proceedings under subsection (1), a court concludes that evidence obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded,” Justice Fontana noted it clearly says “shall,” not “may” or “should.”
“It made matters very difficult for law enforcement,” he said, adding any time evidence is obtained through search and seizure, it is presumed to be “unreasonable”—with the burden lying with the police and Crown to prove otherwise.
“I think it would be a better world if the citizenry understood what law enforcement has to deal with,” Justice Fontana remarked. “I can only say the changes in regime brought in by the Canadian Charter of Rights and Freedoms has been cataclysmic.”
On a lighter note, he also spoke about some of his earliest cases as a Crown Attorney, including “The Case of the Putrid Purloined Porkchops,” in which the evidence in a case of theft from a butcher shop had the jury holding their noses—and delivering the verdict in record-time.
Justice Fontana wrapped his talk by presenting Wes Derksen, Larry Phillips, and Clare Brunetta of the Rainy River Law Association with a copy of the Bill of Rights, autographed by John Diefenbaker, Canada’s 13th prime minister.
Justice Fontana was introduced by Derksen, who, in Derksen’s words, “needed no introductions,” was “one of the most beloved judges in the province,” and is known as “a man of keen intellect who’s greatly respected for his compassion.”
He noted Justice Fontana grew up in Fort Frances, along with brothers, Larry and Bill, and sister, Jenny. He graduated from Fort Frances High School in 1957, and later graduated with a law degree from the University of Ottawa.
He became an assistant Crown Attorney in Ottawa, then later Crown Attorney for Rainy River District, before being appointed to the Ontario Court of Justice.
Justice Fontana is perhaps most widely-known for writing “The Law of Search and Seizure in Canada,” which Derksen referred to as “a Bible” in legal circles (he currently is working on the seventh edition).
He also has authored a book called “No Cause of Death”—the true story of Canada’s first murder case where a cause of death could not be medically ascertained.
Derksen also related a few humorous anecdotes regarding Justice Fontana, such as when he was an assistant Crown Attorney in Ottawa and had to climb through the open window of a courthouse at night to retrieve his boss’ briefcase which contained his pyjamas.
He was caught by the police, and had to convince them he was told to break in by a Crown Attorney.
Brunetta also took the mic and applauded Justice Fontana for his achievements, suggesting he should spend his free time lecturing at universities.
Now retired, Justice Fontana lives in Ottawa, but has a summer home at Nickel Lake. Occasionally, he still handles some cases both in eastern Ontario and in the region.
The evening’s program was preceded by a spaghetti dinner and a mass.
Being a “Law Enforcement Night,” the event included representatives from the Fort Frances OPP, Canada Customs, the Ministry of Natural Resources, and Rainy River Law Association.
Also on hand were Mayor Dan Onichuk (on behalf of the town and local Police Services Board), as well as Knights of Columbus members and their families.