Comments on: Can guns be excluded under s. 24(2) of the Charter? http://www.thecourt.ca/2007/09/11/can-guns-be-excluded-under-s-24-2/ The Court is the online resource for data and debate about the Supreme Court of Canada. Fri, 10 Feb 2012 22:34:40 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Marcus Pratt http://www.thecourt.ca/2007/09/11/can-guns-be-excluded-under-s-24-2/comment-page-1/#comment-23967 Marcus Pratt Wed, 12 Sep 2007 15:44:11 +0000 http://www.thecourt.ca/2007/09/11/can-guns-be-excluded-under-s-24-2/#comment-23967 Mr. Donovan performs an effective bit of advocacy in arguing that the Ontario Court of Appeal went beyond its appropriate institutional role in recently refusing to exclude evidence of guns that it found to have been obtained in violation of the Charter. Mr. Donovan suggests that, in reaching this conclusion, the court entered the arena of "gun policy", which is best left to the legislature. According to Mr. Donovan, under Canadian law there is a very clear and logical demarcation between the roles of the legislature, the executive, and the judiciary. It is for the legislature to decide who should have guns, the police to enforce that policy, and for the judiciary to ensure that the police do not violate our Charter rights in that enforcement. Given this apparent clear delineation of responsibilities, the question remains how could the Ontario Court of Appeal get it so wrong? The answer is to be found in the wording of s.24(2) that provides the authority to courts to exclude evidence obtained in violation of the Charter. Section 24(2) does not state, as perhaps a reading of Mr. Donovan's comment suggests it might, that evidence obtained in violation of the Charter shall be excluded to uphold the rights and values of the Charter. Instead, the question of whether illegally obtained evidence should be excluded depends on an assessment "of all the circumstances" as to whether the admission of the evidence would bring the "administration of justice into disrepute". Thus, s.24(2) precludes the application of an automatic exclusionary rule, or an inclusionary rule, when the police obtain evidence in violation of the Charter. Instead, s.24(2), by focussing the issue of admission on the effect on the administration of justice, ensures that criminal courts will inevitably be drawn into assessing various policy considerations as to what is best for the administration of justice. Mr. Donovan has a very clear idea as to what is best for the administration of justice; if the police violate the Charter, courts must exclude. There are certainly strong policy grounds to support that view, some of which are articulated in Mr. Donavon's piece. A strong exclusionary rule is the only practical way society has to enforce police compliance with the Charter. At the same time, there are alternative policy arguments that suggest that the administration of justice is not well served by an automatic exclusionary rule, some of which are articulated in the Ontario Court of Appeal's recent refusal to exclude guns obtained in violation of the Charter. It is in society's interest that dangerous criminals not be returned to the community simply because of improper police conduct that did not impact on core Charter values. The inevitable role that policy considerations play in s.24(2) jurisprudence makes this area of law, as Mr. Donovan points out, "messy". But it is messy not such because, in certain kinds of cases, guilty people will be released to protect the Charter rights of all of us. It is also messy because, in other kinds of cases, the protection provided by the Charter to all of us may be diminished so that dangerous persons with guns are not released back into the community. By the wording of s.24(2), courts have been drawn into this messy debate about competing values and policies. It is entirely appropriate to criticize how courts have resolved those debates in particular cases. It is not fair, however, to suggest that by entering those debates courts have forgotten their judicial function Mr. Donovan performs an effective bit of advocacy in arguing that the Ontario Court of Appeal went beyond its appropriate institutional role in recently refusing to exclude evidence of guns that it found to have been obtained in violation of the Charter. Mr. Donovan suggests that, in reaching this conclusion, the court entered the arena of “gun policy”, which is best left to the legislature. According to Mr. Donovan, under Canadian law there is a very clear and logical demarcation between the roles of the legislature, the executive, and the judiciary. It is for the legislature to decide who should have guns, the police to enforce that policy, and for the judiciary to ensure that the police do not violate our Charter rights in that enforcement.

Given this apparent clear delineation of responsibilities, the question remains how could the Ontario Court of Appeal get it so wrong? The answer is to be found in the wording of s.24(2) that provides the authority to courts to exclude evidence obtained in violation of the Charter. Section 24(2) does not state, as perhaps a reading of Mr. Donovan’s comment suggests it might, that evidence obtained in violation of the Charter shall be excluded to uphold the rights and values of the Charter. Instead, the question of whether illegally obtained evidence should be excluded depends on an assessment “of all the circumstances” as to whether the admission of the evidence would bring the “administration of justice into disrepute”. Thus, s.24(2) precludes the application of an automatic exclusionary rule, or an inclusionary rule, when the police obtain evidence in violation of the Charter. Instead, s.24(2), by focussing the issue of admission on the effect on the administration of justice, ensures that criminal courts will inevitably be drawn into assessing various policy considerations as to what is best for the administration of justice.

Mr. Donovan has a very clear idea as to what is best for the administration of justice; if the police violate the Charter, courts must exclude. There are certainly strong policy grounds to support that view, some of which are articulated in Mr. Donavon’s piece. A strong exclusionary rule is the only practical way society has to enforce police compliance with the Charter. At the same time, there are alternative policy arguments that suggest that the administration of justice is not well served by an automatic exclusionary rule, some of which are articulated in the Ontario Court of Appeal’s recent refusal to exclude guns obtained in violation of the Charter. It is in society’s interest that dangerous criminals not be returned to the community simply because of improper police conduct that did not impact on core Charter values.

The inevitable role that policy considerations play in s.24(2) jurisprudence makes this area of law, as Mr. Donovan points out, “messy”. But it is messy not such because, in certain kinds of cases, guilty people will be released to protect the Charter rights of all of us. It is also messy because, in other kinds of cases, the protection provided by the Charter to all of us may be diminished so that dangerous persons with guns are not released back into the community. By the wording of s.24(2), courts have been drawn into this messy debate about competing values and policies. It is entirely appropriate to criticize how courts have resolved those debates in particular cases. It is not fair, however, to suggest that by entering those debates courts have forgotten their judicial function

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