July 20, 2009
On Friday the Supreme Court of Canada released judgments in four eagerly awaited criminal Charter cases: R. v. Grant, 2009 SCC 32; R. v. Harrison, 2009 SCC 34; R. v. Shepherd, 2009 SCC 35; and R. v. Suberu, 2009 SCC 33.
Although much of the media coverage has focused on the results, ultimately the Court found no Charter violation in either Shepherd or Suberu, affirmed the decision below to admit into evidence an unconstitutionally obtained handgun in Grant, and excluded the cocaine at issue in Harrison. By the numbers, that looks like a 3 to 1 victory for the state over the individual accused, and an unmitigated victory for crime control over due process.
A closer consideration of the judgments, however, reveals a far more nuanced and optimistic outcome for those who worry equally about civil liberties.
Of the four, Friday’s key decision was undoubtedly Grant. Despite the Court’s decision to admit the handgun in that case, a closer reading of the judgment reveals that proponents of due process have much to celebrate.
Section 9 of the Charter
First, the Court has finally seized the opportunity to identify the underlying purpose of s. 9, the right not to be arbitrarily detained or imprisoned. They have never done this before, even though s. 9 has been before them on countless occasions. The Court recognized, quite correctly I think, that the purpose of this important Charter guarantee is to protect our liberty from unjustified interference by the state. With that purpose in mind, the Court went on to revisit the meaning of "detention", which is the legal event that triggers the protection afforded by this constitutional guarantee.
In its judgment, the Court re-affirms the core of its earlier precedent in R. v. Therens, [1985] 1 S.C.R. 613, while also providing much-needed and very practical guidance on when a police-citizen encounter will constitute a "detention". In a very useful summary that should undoubtedly find its way into police training manuals, the majority explains at para. 44 that:
1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
The reference in 2(c) to the individual’s "minority status" is an undoubted and welcome recognition by the Court that members of certain visible minority communities have been policed differently in the past, and that their unique experience in being targeted for increased scrutiny will understandably influence their perception of a police encounter and ought to be taken into account in assessing whether or not they were "detained" for Charter purposes.
Applying these criteria, the Court concluded that young Mr. Grant was indeed “detained” when he was intercepted by three police officers, one in uniform blocking his way to the front, with two standing by just behind him, asked for his name and address, told “to keep his hands in front of him” and then subject to a series of questions that resembled an interrogation.
Recognizing a new s. 24(2) exclusionary framework
With respect to s. 24(2), which was the other major focus of its ruling, the Court essentially rewrites the rules from its earlier – and much criticized – judgments in R. v. Collins, [1987] 1 S.C.R. 265 and R. v. Stillman, [1997] 1 S.C.R. 607.
This new approach is a considerable improvement over Stillman, and the insurmountable confusion that was created by that judgment’s "conscripted" vs. "non-conscripted" evidence categorization.
In Grant, in deciding whether or not the admission of evidence could bring the administration of justice into disrepute (the language from s. 24(2)) the Court favours a more robust balancing approach, which sensibly requires a consideration of: (1) the seriousness of the Charter infringing state conduct, (2) the impact of the breach on the Charter protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits. Under this approach, unlike Stillman, no single factor is controlling and no particular type of evidence is privileged for exclusion or admission.
Hopefully, lower court judges will see past the result in Grant, in which the Court admits the handgun. The Court was careful to explain that it was doing so in large part because the demarcating line between permissible police-citizen encounters and constitutionally prohibited arbitrary detentions was unclear prior to its judgment in Grant. In other words, the officers in Grant were to be forgiven for making an honest mistake in navigating this confusing area of the law. In fact, the Court was careful to point out in Grant that the decision to admit the handgun was a "close case". Thankfully, the Court's judgment in Grant now clarifies much of that confusion, which is why the Court makes a point of noting, at para. 133:
We add that the Court’s decision in this case will be to render similar conduct less justifiable going forward. While police are not expected to engage in judicial reflection on conflicting precedents, they are rightly expected to know what the law is.
In future, police officers who do what the officers did in Grant can expect that the fruits of their unconstitutional efforts will be excluded.
In short, even though the Court admitted the handgun in this case, it has sent a very strong and clear message to the police: Police officers, know and obey the law. If you exceed the established limits on your legal authority and happen to acquire evidence in the process, you will not be rewarded. To the contrary, the courts will disassociate themselves from deliberate violations of Charter rights by excluding the fruits of their unconstitutional efforts. They will do so, even in cases involving serious crimes (i.e. the exclusion of a very large quantity of cocaine in Harrison).
Conclusion
These judgments are a real breath of fresh air for those of us who are concerned about civil liberties and what has been a noticeable trend in lower courts, as of late, towards the admission of unconstitutionally obtained evidence.
3 Comments
I agree on both counts as to both developments in s. 9 and 24(2).
I am left a little perplexed by the finding in Suberu that there was no detention and I am left wondering why "all the circumstances" - as the majority chimed throughout Grant - does not include considerations such as the particular characteristics or circumstances of the individual where relevant..." when considering the impact of the breach on the Charter interests of the (particular) accused, under the new part-II of the 24(2) test.
I'd like someone to explain to me how the Supreme Court thinks it can reconcile its decision in Shepard with its previous jurisprudence about the standard of deference owed to question of mixed law and fact:
"[T]he matrices of facts at issue in some cases are so particular, indeed so unique, that decisions about whether they satisfy legal tests do not have any great precedential value. If a court were to decide that driving at a certain speed on a certain road under certain conditions was negligent, its decision would not have any great value as a precedent. In short, as the level of generality of the challenged proposition approaches utter particularity, the matter approaches pure application, and hence draws nigh to being an unqualified question of mixed law and fact."
-- Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748 at para. 37.
"We reiterate that it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. If there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion. The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts.
...
To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error."
-- Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at paras. 23, 36.
"While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. In our view, the summary conviction appeal judge erred in failing to distinguish between the trial judge’s findings of fact and his ultimate ruling that those facts were insufficient, at law, to constitute reasonable and probable grounds. Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review for correctness."
-- R. v. Shepherd, 2009 SCC 35 at para. 20.
I'll admit I've only spent a few seconds thinking about this issue, but to me the application of the facts of Sheppard to the question of whether those facts gave rise to RPG is a textbook example of a question of mixed fact and law that is owed deference. What am I missing here?
Being a serving Police Officer for 25 years ,i have been in many situations where evidence as been seized or a person detained.In some of these situations split second decisions had to be made .I have often questioned myself whether i was within charter guidelines once these situations were contained and i had opportunity to review my actions.
I fully agree that all evidence should be dismissed where it is shown the Police ,knowingly and with forethought,breached the charter in order to gain evidence.I do have a problem with evidence being dismissed in all occasions where it can be shown that the Police acted in good faith at the time the evidence was seized.
Of course when i am off duty and with my family and friends ,i want the full protection of the charter applied to all of us if we are confronted by the state for some reason.Even though i do have some reservation about evidence being dismissed in all occasions of charter breaches,i do have to agree with the SCC ruling in this matter.Due to the immense powers given to the Police by the state and the trust given to the Police by the public,we are expected to and must abide by the strict rule of law.If we don't,who else will.