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Rewriting the Rules on the Exclusion of Evidence under S. 24(2)
In a long-awaited and much-anticipated move, the Supreme Court of Canada’s recent decision in R. v. Grant, 2009 SCC 32 revised the framework for determining whether evidence obtained in breach of the Charter must be excluded under s. 24(2), or else risk bringing the administration of justice into disrepute. As previously explained here by Professor James Stribopoulos, the SCC identifies three lines of inquiry that should guide courts in making these determinations: (1) the seriousness of the Charter-infringing state conduct; (2) the impacts 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.
By mandating a robust balancing approach of these three lines of inquiry, the Supreme Court does well to protect civil liberties from undue encroachment by police. What troubles me, though, is Grant’s illogical severing of the first line of inquiry from the second.
Specifically, I would argue that the seriousness of Charter-infringing state conduct flows from the impacts of the breach on the Charter-protected interests of the accused, notwithstanding a few extraneous factors. And while I concede that severing the lines of inquiry may serve an important deterrent function, I challenge the efficacy of that function and believe that the administration of justice would be best served by conflating the two inquiries into one – namely, “society’s interest in protecting the constitutional rights of the accused.” Deschamps J. also argues as much in the Grant minority.
The Supreme Court’s controversial decision in R. v. Harrison, 2009 SCC 34 accompanies Grant and usefully applies its new exclusionary framework for our purposes. That case will provide the jumping-off point from which I will engage the relevant legal issues.
Offending the Law in Harrison
The facts in Harrison are well-known and recounted in detail here by Tom Schreiter for TheCourt.ca (in the context of the Ontario Court of Appeal judgment). For our purposes, I will only provide a brief summary.
The accused and his friend rented an SUV at the Vancouver airport with the intent of driving it to Toronto. Concealed in the trunk were two cardboard boxes containing seventy-seven pounds of cocaine. The two friends drove the vehicle without incident until being noticed in northern Ontario by an OPP constable, alerted to the fact that they were traveling at exactly the speed limit and without a front license plate. He turned on his police sirens in pursuit, only to learn that the SUV was registered in Alberta where front plates are not required, meaning that the drivers no longer appeared to be doing anything illegal. Realizing as much, the constable proceeded to pull over the vehicle anyway so as to preserve the other motorists’ “integrity for police”. Upon discovering that the accused was missing his driver’s license and that it was suspended, the constable arrested him and searched the SUV as an incident to the arrest. The cocaine was soon found.
(1) The Seriousness of the Charter-Infringing State Conduct
McLachlin C.J.C. for the Harrison majority explains that the first inquiry in Grant’s exclusionary framework considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Central to this question is whether the Charter-infringing conduct is so reprehensible that the high court should be concerned to dissociate itself from it, or else risk bringing the administration of justice into disrepute. This is more likely where obvious or deliberate infringements occur, and less likely where infringements are of a technical nature or the product of understandable mistake.
The Harrison majority characterizes the constable’s misconduct as “brazen” and “flagrant,” especially considering that “reasonable grounds for the initial stop were entirely non-existent,” as were grounds for the search. A hard copy of an accused’s driver’s licence is not required to determine that it is suspended or to make an arrest, so a subsequent search cannot be “incidental” or otherwise justified.
Aggravating the constable’s disregard for Charter rights was his testimony at trial, described by the trial judge as “misleading” the court as to his real purpose in searching the accused’s vehicle. While that testimony did not exacerbate the seriousness of the Charter breaches at the time of their commission, it undermines “the integrity of the judicial system” and the Harrison majority finds that it must dissociate itself from such behaviour. Given these conclusions, the constable’s Charter-infringing conduct was deemed "serious, and not lightly to be condoned."
(2) The Impacts of the Breach on the Charter-Protected Interests of the Accused
Proceeding with the second inquiry within the new framework, the Harrison majority next considered the impacts of the constable's impugned conduct on the accused’s Charter rights. The more serious the impacts on the interests underpinning affected rights, the greater the risk that the Charter is perceived as providing a weak counterpoint to the wide-ranging powers of police, sullying the administration of justice.
This case engages the accused’s privacy and liberty interests. While the majority notes that his detention was brief and that he enjoys a low expectation of privacy in a rented vehicle, the relatively non-intrusive nature of the detention and search “must be weighed against any reasonable basis for justification,” of which there was none. This rendered the impacts of the constable’s misconduct a “significant, although not egregious” intrusion on the accused’s Charter-protected interests.
Conflating the First and Second Inquiries
What becomes immediately apparent upon reading Harrison’s explanation of the first and second lines of inquiry is a logical linkage between the two – that in large part, the constable’s Charter-infringing conduct was so serious because of the impacts of the infringements on the Charter-protected interests of the accused.
In the first inquiry, the Supreme Court wishes to dissociate itself from obvious and deliberate infringements. These infringements are usually obvious and deliberate because they have grave impacts on an accused’s protected rights. Specifically in Harrison, police misconduct characterized as “brazen” and “flagrant” is deemed a "serious" departure from Charter standards. That departure is usually “serious” because it compromises the privacy and liberty interests of the accused.
In my view, determining whether Charter rights are triggered in the second inquiry may all but determine whether the state's Charter breach is serious in the first, notwithstanding extraneous factors like offensive trial testimony and other extraordinary circumstances.
Given this, I fear that the Supreme Court’s artificial distinction of the two inquiries will have unintended consequences. For example, I imagine that the determinations will often produce similar results. Further, without the causal connection between impacts on Charter interests and the seriousness of state conduct being made clear, judicial determinations under the first line of inquiry may read awkwardly and with the causal connection lingering between the lines, as it does in Grant and Harrison.
That is not to say that despite the connection between the first two inquiries, they have not been severed for an important purpose. In my view, and although the high court reiterates that all relevant factors are to be weighed in a balance, one such purpose may be to especially emphasize the first inquiry, if only implicitly, by considering it first and apart from the second.
Deschamps J. suggests in Grant that this first inquiry, enabling the court to positively dissociate itself with serious police misconduct by excluding certain evidence, may be intended to deter future misconduct. While the Grant and Harrison majorities never confirm such an intention, there is little academic consensus as to whether exclusionary regimes are actually effective as deterrents. Professor David Paciocco, for example, has argued that s. 24(2) cannot have a deterrent effect, as it does not establish a clear and predictable rule requiring the exclusion of evidence. I believe that had Grant not obscured the causal connection between the first and second inquiries, perhaps s. 24(2) could have established such a rule.
Thus, I am persuaded by Deschamps J. that these two inquiries are best conflated into one, focusing on society’s interest in protecting the constitutional rights of the accused. A broader consideration of this question would engage all significant impacts on Charter-protected interests, the seriousness of the state’s impugned conduct both leading up to and during trial, whether that conduct is symptomatic of unconstitutional state policy, and any other relevant militating factors. The question’s findings would then be weighed on a balance with society’s interest in adjudicating the case on its merits.
Harrison Revisited
Reconsidering Harrison with the benefit of Deschamps J.’s conflated framework, the findings of the majority would not substantially differ because the very same assessments are being made, only as part of a different inquiry.
I would agree with the Harrison majority’s conclusion that in light of the police constable’s reprehensible breaches of the accused’s privacy and liberty interests, society’s interest in protecting Charter rights far outweighs its interest in securing an otherwise likely conviction in the case.
In many future s. 24(2) cases, the Supreme Court would do well to frame its exclusionary framework more clearly, so that both judges and law enforcement officials may have a better sense of what the law is and how to apply it.
4 Comments
I agree with your general comments, although from this great distance, Grant and Harrison appear inconsistent. If a gun is admissible after a groundless bodily search, why isn’t 35 kg cocaine admissible after a groundless search of a car?
The three-limbed balancing exercise in Grant is difficult to visualise. The Court suggests it is a “decision tree”. A diagram would have helped. In NZ, we find a two-armed balancing is sufficient: magnitude of impropriety versus public interest in admitting the evidence. Other than that, all the relevant considerations are the same.
The SCC was right in Grant to remove the trial fairness element from the balancing exercise, as international recognition of the accused’s right to a fair trial as absolute is inconsistent with compromise by balancing.
The element of police good faith seems to have been over-emphasised in Harrison. The police are expected to act in good faith and shouldn’t be given additional credit for doing so.
Perhaps a diagrammatic representation of the decision model would have highlighted the need for the public interest factor to be linked to a scale, such as the likely starting point for sentencing in the case. The more serious the offence, the greater the public interest in admission of the improperly obtained evidence. Harrison suggests that even an offence that would attract a very serious penalty is insufficient to outweigh the official impropriety involved in groundlessly stopping and searching a car on a highway.
Social context is important of course. In NZ we accept that cars may be stopped for routine checks, such as roadworthiness and licensing, although search does require grounds. I am sure the evidence in Harrison would have been ruled admissible in a New Zealand court; and it is reasonably likely that the gun in Grant would be admissible (a much less serious offence, but public safety considerations would be important). The SCC seems unduly worried about damage that would occur to the repute of the administration of justice if it did not respond to Charter breach, and insufficiently worried about the cost incurred by society when the aims of the criminal law are frustrated. But those are matters for Canadians.
Exclusion of evidence need not be the only available judicial response to official impropriety in evidence collection. Reduction of sentence could be used to vindicate breach of rights in the context of evidence collection, just as reduction can be a remedy – if a stay is not appropriate - for breach of the right to a trial within a reasonable time. But at the moment the law of evidence has a monopoly over remedy; logical, yes, but perhaps just the beginning of growth of the law.
I do not think I am persuaded about conflating the 1 & 2 of the test. First, as you pointed out, "offensive trial testimony" will often not be directly related to the Charter protected-interests (as pleaded) but still must be considered under all the circumstances: in the police conduct portion of the test. Moreover, there are other circumstances that are less-than-extraordinary where it seems appropriate to have a distinction. I am thinking particularly about similar fact evidence regarding certain police officer misconduct or evidence as to charter-infringing police policy. These circumstances are more refereable to the seriousness of the police misconduct than to the particular interests of the accused in a particular case.
This leads into the last point, I believe the distinction is necessary in so far as you can have two cases with equally egregious police misconduct but have different protected interests at stake, as pointed out by the majority: statement evidence, bodily evidence, evidence from a home, from a car, etc. This allows the court to come to different outcomes, despite having, theoretically, equally bad police misconduct. This seems appropriate in so far as 24(2) is not automatic exclusion or inclusion (but rather 'tends' in certain directions). I think police conduct should be objectively viewed along the continuum without considering the charter interests at stake, as part two allows for fulsome consideration of the Charter interests.
As there has been no response to R’s comment, I hope I may be allowed more. The problem raises interesting questions about the utility of conceptual models to clarify legal decision-making. Three models can be identified, having one, two or three dimensions respectively.
In the two dimensional model there are two axes: the horizontal, x-axis, measures the impropriety by which the evidence was obtained, and the vertical, y-axis, measures the public interest in admission of the evidence. The two axes define boundaries of the field of balance points, which is a square or rectangle. This field consists of two zones: the zone of balance points which indicate admissibility, and that indicating inadmissibility.
Getting to R’s comment: on the x-axis, Charter breach will increase the level of seriousness of police misconduct by moving the appropriate point to the right: that is, to a part of the x-axis representing a more serious impropriety than would have been the case if the misconduct did not involve a Charter breach. Aggravating and mitigating circumstances will still be relevant, to push the point to the right or left, but the Charter breach will still make the final placing on the x-axis more to the right than it otherwise would have been. These assessments are all made against the background of precedent decisions. Then, after assessing the public interest point on the y-axis, the balance point may be identified in the field. The ultimate question is which zone does it fall in, and that too depends on the position of the boundary between the admissible and inadmissible zones, as indicated by precedents.
But if there are three axes – as the three dimensional model requires - conceptualisation is more of a challenge, which is a signal that the legal reasoning is not helpful. It is obvious that the two-dimensional field of balance points is easier to visualise than a three-dimensional field (which would be the volume of a cube or cuboid). Imagining the boundary between the part of that volume that represents the admissible zone, and the part that represents the inadmissible zone, is not easy.
The Supreme Court’s model in Grant is even less clear, as it is called a “decision tree”.
You could argue that it is better to imagine the Supreme Court’s decision process as the moving of a point along one axis only, using three distinct steps. This would be the one dimensional model. Here, the axis would represent something new: degrees of admissibility or inadmissibility. Nonsensical as this may be (you can’t be partially pregnant), looking past that objection, the left end of the axis may be a zone of admissibility, then comes a zone of “only just inadmissible”, then something more clearly inadmissible (“plainly inadmissible”?), then – reflecting more serious misconduct – a zone that might be called “patently inadmissible”. The Supreme Court’s three branches would then be three steps or movements of a balance point along the axis in either direction. An impropriety such as a warrantless search of an occupied dwelling could then be addressed as: first, a position in the plainly inadmissible zone, second, because of Charter breach, a move to the patently inadmissible zone, and third, reflecting a high public interest (say, explosives were found indicating terrorist activity), a strong move to the left to the admissible zone.
That would be workable if it allowed the relationships between precedents to be clearly identified. The linear nature of this model makes the cases cluster, whereas a two dimensional field would allow their relative positions to be clarified. Cases having the same degree of impropriety could then be distinguished in terms of public interest because of the seriousness of the detected offending, and cases of similar public interest might be distinguished by a difference in degree of impropriety. I do not suggest that this model cannot be made to work; but if it can be, it is inapt to describe it as a decision tree: it is a linear scale. But a scale of impropriety makes more sense than a scale of admissibility, and the two-dimensional model is best.
In my opinion, Deschamps J.'s dissent in Harrison betrays a major shortcoming of her approach to s. 24(2) as articulated in her dissenting opinion in Grant: by collapsing seriousness of the offence and impact of the breach on Charter-protected interests into a single branch, Deschamps J. effectively crowds out any meaningful consideration of the effect of Charter-violative conduct on the long term repute of the administration of justice.
Deschamps J. writes at para 226 of Grant that "state conduct is but one of the factors to be considered in assessing the impact of the violation on the protected rights" (i.e. stage I). This does not seem consistent with the policy rationale behind s. 24(2), namely the fostering the maintenance of public confidence in the rule of law, (on which both the majority and Deschamps J. expressly agree). I can't think of anything more indispensible to promoting the "maintenance of public confidence in the rule of law" then having the court dissociate itself with egregious state conduct.
It is therefore perplexing that Deschamps J. gives such short shriff to this consideration. Considering that she does however, it is not surprising that, whereas the majority in Harrison is alive to the fact that the police officer showed a callous disregard for the Charter, Deschamps J. barely notices.