Can guns be excluded under s. 24(2) of the Charter?
It appears that after last week’s Ontario Court of Appeal (OCA) decision in R. v. L.B., the chances of having a gun excluded from evidence in criminal proceedings is next to impossible. Justice Moldaver’s reasons, which were fully supported by Justices MacPherson and Cronk, make it clear that the OCA is taking a hard line in cases involving firearms. Next spring, the SCC will be hearing another case coming out of the OCA, R. v. Grant. R. v. L.B. and R. v. Grant are factually similar in that they involve firearms and police officers who lack a strong justification for their intrusions on the accused. In deciding Grant, it will be interesting to see whether the SCC uses the opportunity to send a signal to law enforcement officials that Charter rights must be upheld even when investigating gun crimes, or whether it will suggest to the police and lower court judges that those rights can be bent when dealing with the issue of guns on our streets.
Gun crime is a serious policy issue. It is a problem to which our government must give high priority. However, it is as important that the problem is addressed within the boundaries that we have placed on our government. Our system of governance separates power between three branches. The legislature is the branch which must be at the forefront of tackling gun crime. It is most suited to ask ‘why’ such problems exist and ‘how’ they can be most effectively addressed and prevented. After determining a proper response to gun crime, the legislature should then charge the executive with the task of implementing the policy. In our constitutional democracy, we have decided that the process of determining the policy (creating the law) and implementing the policy (applying the law) is to be done with respect to the values and rights which are enshrined in the Charter. The proper role of the judiciary is to ensure that these rights and values are upheld.
The major tool that the judiciary uses to guarantee these rights are upheld during the course of criminal prosecutions is the exclusion of evidence. We can only make sure that our rights will be protected if those in a position to violate them are aware that there will be consequences to an infringement. Simply put, all rights need remedies.
Admittedly, exclusion creates a sloppy system. It means that some reliable evidence will be excluded from trials against people who are clearly guilty. However, with limited alternatives for holding law enforcement accountable for rights violations, it is currently the best tool the judiciary has to uphold our rights after they have been violated during the investigation of a crime. We should be willing to see some factually guilty people go free to prevent law enforcement from violating the rights of the innocent.
That said, it seems clear that the OCA is shying away from the use of this protection when dealing with gun crime. The OCA in R. v. L.B. and R v. Grant appears to be doing more than simply refusing to exclude evidence. It seems to be attempting to address the problem of gun crime from the bench by creating a hard line policy against exclusion when dealing with firearms related offences. Whether such a hard-line policy should be adopted is better left to the legislature. The judiciary should be more concerned with ensuring that the policies that the legislature implements do not violate the rights of accused individuals.
R v. Grant
At the time of his arrest, Donahue Grant was an 18-year-old male who was walking alone near Greenwood Avenue and Danforth Avenue in Toronto. It was lunch hour at a nearby school when two undercover police officers saw him and decided that he had walked past them in a ‘suspicious’ manner. They radioed a uniformed police officer, who got out of his patrol car, stood in Mr. Grant’s path, instructed him to keep his hands in front of him and began to ask him questions. The two undercover officers then identified themselves and stood behind the uniformed officer as the questions were asked. They questioned Mr. Grant for about seven minutes. He was asked whether he “had anything that he shouldn’t”. At first, he replied that he had a small bag of marijuana. After the policemen pressed further, Mr. Grant admitted to having a loaded firearm.
The OCA found that Mr. Grant had been arbitrarily detained. The police had no reasonable grounds to detain Mr. Grant and therefore they had violated his s. 9 Charter right against arbitrary detention. This violation led to Mr. Grant to issue a statement in which he admitted to having a firearm; that statement led to the discovery of the gun. The gun would not have been found in the absence of a violation of Mr. Grant’s constitutional rights.
However, despite the violation of his s. 9 right against arbitrary detention and a determination that the fairness of his trial would be hindered by his self-incriminating statements, the OCA determined that the gun should be admitted into evidence.
Writing for a unanimous panel, Justice Laskin stated the decision was reached by balancing the interests of the individual accused against the interests of the community. In the end, the interest of the community in combating what were described as increasing levels of gun violence exceeded the interests of the individual accused. This was largely because Laskin J. determined that “the police did not grossly overstep the bounds of legitimate questioning, acted in good faith, used no force, and were patrolling one of Toronto’s high-crime areas”. Exclusion would, according to Laskin J., be damaging to the reputation of the justice system. Laskin J. was effectively acting as though it is the responsibility of the judiciary to combat gun violence, when it is more appropriately and more effectively the realm of the legislature.
R v. L.B.
Justice Moldaver’s decision in R. v. L.B. is very similar in this regard. The situation in R v. L.B. involved two plain-clothed police officers patrolling the infamous Toronto neighbourhood of Jane Street and Finch Avenue in an unmarked police car. They drove by a high school where they saw a 15-year-old male (F) sitting on a railing near the entrance to the school. Another 15-year-old male (L.B.) was standing some distance from F and holding a black bag. They drove past and after some consideration decided to turn back to the school to have a word with the two boys.
In a puzzling explanation as to why they decided to speak with the two young boys, the officers testified that the position of the two boys was suspicious. They had reached a conclusion that the two boys were ‘together’, despite their distance from one another. The officer said that suspicion arose because they did not understand ‘why they weren’t together if they were together.’ Of course, one explanation could have been that they simply were not together. Another could have been that one student got held up within the school and the other was simply ahead of him. But instead, the two police officers decided that the two young high-school students were setting up position much like two police officers would do if they were looking for someone in that area. As the officer testified, “My partner would take the upper level, I’d take the lower level, and we’d always be able to see each other. It’s a police tactic.” (para. 12)
The police officers stopped their car, displayed their badges and a warrant card, and yelled out ‘Toronto Police”. Without being asked, L.B. walked towards them. The officers started a conversation by asking some chit-chatty questions and then moved on to ask both of the boys for their names and dates of birth in order to run a CPIC check. While they were running the check, one officer noticed that L.B. was no longer holding his bag. He then walked towards the school where he found the black bag. He asked if the bag belonged to one of the boys. They responded by saying they did not know the owner of the bag. The officer then treated it as abandoned property. He opened it to find a pile of L.B.’s homework and a loaded .22 calibre handgun. Both boys were arrested at gunpoint.
At L.B.’s trial, the judge determined that the police officers had breached L.B.’s Charter rights in three ways. First, they had detained him without justification contrary to his right against arbitrary detention. Second, once L.B. was in detention the police did not tell him of his right to counsel. Last, since the police had arbitrarily detained the boys and not instructed them of their right to counsel, they had no legal justification for asking questions about the bag containing the gun. Therefore, the search of the bag was unreasonable contrary to s. 8 of the Charter. As a result of these breaches, the trial judge determined that the evidence should be excluded under s. 24(2) of the Charter because allowing it to be heard at trial would bring the administration of justice into disrepute.
Justice Moldaver’s judgment in the Court of Appeal was a clear rejection of the trial judge’s decision. In summary, he simply found that the boys were not detained. For Moldaver J., the evidence on the record (only the police officers’ testimony ) showed that L.B. was simply too confident in his interactions with the two officers to find that he was psychologically detained. Since the boys were not detained, there was no violation of s. 9 of the Charter. The police officer was therefore justified in asking the boys if they knew the owner of the bag. When the boys responded that they did not own the bag, the officer was further justified in treating it as abandoned property and going through its contents. According to Moldaver J., no Charter rights were violated during the police’s interaction with the boys.
However, despite finding no violation, Moldaver J. decided to entertain whether the gun should have been excluded if a violation had been found. In doing so, he emphasised the seriousness of gun-related offences in determining that the evidence should be admitted. He characterizes the issue of gun violence as one that “conjures up images of horror and anguish the likes of which few could have imagined twenty five years ago when the Charter first came to being.”
Again, it appears that the OCA has overstepped the bounds created in the separation of powers and taken it upon itself to battle of the issue of gun crime. Moldaver and Laskin J.J. both determined that gun crime is a serious danger to our society – one which, in order to address, requires a watered-down reading of the rights enshrined in the Charter. Moldaver J. even stated that
absent egregious conduct on the part of the police, most Canadians would find it unconscionable for L.B. to be set free without a trial on the merits. By egregious conduct, I have in mind conduct that the community simply would not countenance, even if this meant allowing a potentially violent criminal to escape punishment. Without being specific, it would involve conduct that showed distain for the rights and freedoms guaranteed by the Charter and that struck at the core value those rights and freedoms were meant to protect.
Basically, so long as the police conduct is not unbelievably offensive to the core values in the Charter, our rights are going to be left without a remedy if a gun is involved. This determination is not one judges are best suited to make. It is the legislature which should assess what Canadians would find unconscionable. It is for the courts to ensure that the legislature’s plan for tackling gun crime is done with respect to Charter rights. When laws created by the legislature or applied by the executive are found to violate those rights, it is the judiciary’s job to provide the remedy.
Hopefully, when the SCC hears R. v. Grant next spring it will send a message to the judiciary that their proper role is in putting a check on state power and not in simply acquiescing in rights violations in order to address the issue of gun violence from the bench.