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.

We at TheCourt.ca have written extensively on all three cases, which perhaps says something about our enthusiasm for section 24(2) jurisprudence as well as about the degree to which we anticipate the Court’s pronouncements. In light of the one-year “anniversary” for Grant and Shepherd and the fact that we have still not heard back from the Court, I’d just like to make a few remarks on what’s at stake.

Twenty-seven years after the enactment of the Charter and twenty-two years after the Supreme Court’s decision in R. v. Collins, in which Lamer J. (as he was then) provided a framework for analyzing section 24(2), Canadian courts are still grappling with how to admit or exclude unconstitutionally obtained evidence in a consistent and principled manner. It is not surprising that courts remain uncertain about how the administration of justice would be best be served when confronted with improperly obtained evidence, given that section 24(2) pits two of the justice system’s primary functions against each other: its role as truth-seeker versus its role as guardian of Charter rights.

In Collins, Lamer J. grouped the various considerations impacting a section 24(2) analysis into three broad categories: (1) factors that affect trial fairness, (2) factors that point to the seriousness of the Charter breach, and (3) factors that relate to the effect of excluding evidence on the reputation of the administration of justice. Although Lamer J. used this structure only “as a matter of personal preference,” subsequent Supreme Court decisions have since adopted his framework as a three-branch test.

Much of the jurisprudence surrounding the Collins test has focused on the trial fairness branch, and the Supreme Court has typically regarded it as the most important consideration in the section 24(2) analysis. However, the jurisprudential fixation on trial fairness has shifted the Court’s attention away from what I believe is the more interesting and pressing debate: at what point is a Charter breach so repugnant that a court should acquit a factually guilty criminal rather than allow the Charter to be so compromised? Or, in the alternative, in what circumstances is uncovering the truth behind a crime so important to the administration of justice that the court should allow a Charter infringement to go unremedied? Finally, in situations where a serious Charter infringement uncovers evidence of a serious offence, would it be the admission or the exclusion of the evidence that would bring the administration of justice into further disrepute? These questions inform the analysis undertaken in the second and third branches of the Collins test, which have in my opinion been given only a cursory analysis in relation to the attention lavished on the trial fairness branch.

Notwithstanding the brouhaha over conscriptive or non-conscriptive evidence, the Supreme Court’s past approach to trial fairness itself has been consistent and relatively clear: evidence that demonstratively taints trial fairness is excluded, period. However, the Court’s way of dealing with competing issues of crime control and protection of civil liberties—issues that inform the latter two branches of the Collins test—has been uneven. Both the SCC and the provincial appellate courts, rather than provide clearer guidance to trial judges on how to reconcile the administration of justice’s competing roles in the section 24(2) analysis, have sidestepped the issue by taking the approach of deference: a trial judge’s decision to exclude or admit unconstitutionally obtained evidence shall be upheld provided that the decision is within reason. With the withdrawal of trial fairness as an overriding factor, however, section 24(2) is increasingly reliant on the nature of the trial judge’s subjective beliefs about the primary goal of the administration of justice–in other words, the particular balance the trial judge strikes between crime control on the one hand, and the safeguarding of constitutional guarantees on the other. As a result of this increased level of judicial discretion, decisions hinging on the second and third branches of the Collins test have been inconsistent and often informed by ideology.

Harrison, for example, seems to stand for the proposition that even the most flagrant Charter breach can be justified if it leads to evidence being uncovered of a serious crime like drug trafficking. This is a direct contradiction to R. v. Feeney, where real evidence of a murder, the most serious criminal offence of all, was excluded because the police engaged in similarly flagrant violations of sections 8 of the Charter. In that case, Sopinka J. declared that “any price to society occasioned by the loss of such a conviction is fully justified in a free and democratic society which is governed by the rule of law.” By contrast, other courts have held that allowing a factually guilty person to go free is more detrimental to the administration of justice than Charter breaches.

Grant and Harrison in particular provide the Supreme Court an opportunity to give better guidance on how trial judges should handle the troublesome paradox of including the seriousness of the offence as a factor in deciding to admit or exclude evidence. It is this writer’s opinion that the precedent that Harrison sets is a dangerous one, and the Court should consider reverting back to the position in Feeney. While excluding evidence relating to an egregious crime would likely jeopardize the repute of the administration of justice, allowing evidence to be admitted because the seriousness of the offence warranted it would mean that those charged with the most serious offences would have the least Charter protection. As Iaccobucci J. said in R. v. Burlingham:

we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he or she actually committed those crimes, is entitled to the full protection of the Charter. Short-cutting or short-circuiting those rights affects not only the accused, but also the entire reputation of the criminal justice system.

Using the seriousness of the offence to justify admitting evidence obtained in breach of the Charter would risk creating an automatic inclusionary rule that carves out any Charter protections for accused persons of serious crimes.

Furthermore, placing too much weight on the seriousness of the offence risks indirectly permitting the larger public to overrule the accused’s constitutional guarantees, since the “seriousness” of a crime is determined by the public’s interest in seeing that crime prosecuted. This would be contrary to the very purpose of the Charter; as Lamer J. said in Collins, “the Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority.”

This is an area of section 24(2) jurisprudence that sorely needs development. Since appellate courts have not yet provided guidance as to how much weight should be placed on the seriousness of the offence, an accused’s Charter guarantees continue to be contingent on a judge’s own subjective views on whether the public’s interest crime control should give way to the protection of civil liberties, or vice versa.

For example, if an officer stops, questions, and searches a person solely on the basis of race – the person was simply walking to the bus stop doing nothing out of the ordinary – and were to find something illegal (a small amount of marijuana for personal use, for instance), how can we allow evidence obtained solely out of racism to be used against a person at his or her criminal trial? Anything short of excluding that evidence is not a real remedy.

The SCC has defended the exclusion of evidence in R. v. Stillman, however, the Ontario Court of Appeal has recently made a marked change in direction. In the recent cases of R. v. Grant and R. v. L.B., the OCA unanimously refused to exclude evidence obtained by grievous police conduct. Arguably the Court of Appeal is trying to reformulate the law set out in Stillman and it seems apparent that no matter what the police do to an accused, if a gun is involved, it will not be excluded from evidence in Ontario. Let’s consider the implications of this. If Charter rights are violated, the accused has no remedy for the fact that he was illegally searched, detained, or essentially tortured (tazered). It is fair then to say that these Charter rights do not legally exist.

How can we, with any intellectual honesty, believe that someone will not be arbitrarily detained if the police know that the fruits of that illegal detention will be admitted against the accused at trial? The Ontario Court of Appeal has sent a clear message to police that no matter what they do to persons, if they find a gun, the court will excuse the police misconduct and our Charter rights become, in a sense, mythical. Again the Ontario Court of Appeal this month in R v. Harrison refused to exclude evidence under s. 24(2) despite unspeakable conduct by the police. There was, however, an excellent dissent by Justice Cronk who at least in recent s. 24(2) jurisprudence, appears to be the only judge at the court to defend and uphold the exclusionary remedy.

Two of these cases, Grant and LB, have been appealed to the SCC. The risk in these cases going to the SCC is that the Court can reverse direction on Stillman and essentially render s. 24(2) a mere fiction. Whereas had these cases not gone up, lower court judges, like Justice Ducharme of the Ontario Superior Court, could still utilize cases like Collins and Stillman to exclude evidence.

In the recent decision of R. v. Padavattan (Ontario Superior Court), Justice Ducharme recognized that the Ontario Court of Appeal has recently tried to change the s. 24(2) rule and could have towed the line at Old Osgoode, but instead took a strong principled approach, maintaining that the SCC decision in Stillman should stand. Just as Justice Ducharme stood up for s. 24(2) in Padavattan, we should hope that the SCC stops this crime control hysteria and defends Canadians’ constitutional rights by giving life to the real operative exclusionary rule that we have in s.24(2) of the Charter. If they choose to abandon all notions of civil liberties and fundamental freedoms as the Ontario Court of Appeal fundamentally has, we will create a situation in this country, where we are allowing the police to engage in any conduct that essentially ignores the Charter and makes it meaningless. The Charter was written and exists to protect citizens and their fundamental liberties from intrusions from that state.

No arm of the government can intrude on an individual’s liberties more than the police; thus, it logically follows that they should be subjected to strict constitutional controls in order to protect our liberties. At the moment, at least in Ontario, it seems that the highest provincial court believes that the police should have no curbs on their actions when their goal is to get serious drugs or guns off the streets; let’s wait and see if the SCC feels the same way.

The organizations which have been granted leave are the federal government’s Director of Public Prosecutions, the Attorney General of British Columbia, the Canadian Civil Liberties Association, and the Criminal Lawyers’ Association (Ontario).

The case, which was recently discussed by Rebecca Ross in her December 17^th post, involves an 18-year old male who appeared ‘suspicious’ to police officers while walking near a school in Toronto’s Greenwood and Danforth area. The police officers approached and questioned him for about seven minutes. They asked if he “had anything that he shouldn’t.” Acting honestly, the young man replied that he was carrying a small bag of marijuana. After the police probed further, he admitted to having a loaded firearm.He was immediately arrested.

Deciding the case will likely force the SCC to re-articulate the bounds of the right to be secure against unreasonable search (s. 8 of the Charter), the right not to be arbitrarily detained (s. 9), and the circumstances under which evidence can be excluded under s. 24 (2). Critics of Court of Appeal’s decision in R v. Grant have argued that the case creates a firearms exception to the s. 24 (2) exclusion rule; that is, firearms have become nearly impossible to exclude from evidence, even in the context of a serious Charter breach.

Obviously, the case raises many important issues of public policy and the SCC’s decision on the matter must be made in a way which recognizes that it will have implications impacting the interests of more than merely the parties involved. Consequently, granting these organizations intervener status will assist the SCC in understanding the broad social and political issues at stake.

Presumably, the Director of Public Prosecutions and the Attorney General of British Columbia will be supporting the position of the Attorney General of Ontario. The Canadian Civil Liberties Association and the Criminal Lawyers’ Association, on the other hand, will likely oppose the government’s position and argue that exclusion must be used as a tool to ensure law enforcement bodies investigate crimes while respecting the rights enshrined in the Charter.

All parties will be provided with limited space to make their arguments. The SCC has not yet decided whether to allow the interveners to present oral arguments and their written arguments will be limited to 10 pages. Nonetheless, their involvement will hopefully contribute to a decision which many of us at theCourt.ca are eagerly anticipating.

At issue in Mr. Grant’s prior appeal was whether his street-level encounter with police amounted to a detention and search contrary to sections 9 and 8 of the Charter. Mr. Grant had passed by two plainclothes officers in a manner that they characterized as “suspicious.” They asked a uniformed officer nearby to have a “chat” with him, and the officer stood in Mr. Grant’s path while telling Mr. Grant to keep his hands in front of him. The uniformed officer began questioning Mr. Grant, and the plainclothes officers arrived and stood behind the other officer. While Mr. Grant was initially only asked for identification, the questioning turned to whether he had been arrested and whether he “had anything on him that he shouldn’t.” The brutally honest Mr. Grant said that he had a small amount of marijuana, and after he was asked if there was anything else, he admitted to having a loaded revolver as well. The police then arrested Mr. Grant, seized the revolver from his waist pouch, and charged him with five firearms offences. The Crown acknowledged that the police had neither reasonable grounds to detain Mr. Grant, nor reasonable grounds to search him.

On the issue of the section 9 claim, the Ontario Court of Appeal found that Mr. Grant was detained and that the officer did not have reasonable grounds to do so; accordingly, this was an arbitrary detention, and Mr. Grant’s section 9 rights were violated. His section 8 rights were not held to have been violated, however, as the OCA did not find that the officers’ questioning constituted a search.

What will be at issue at the SCC this spring is the OCA’s pronouncement on section 24(2), made in light of the evidence obtained following these Charter violations. This is where the case gets quite interesting. Laskin J.A., writing for the unanimous OCA, took this opportunity to question the prevailing wisdom surrounding the application of s.24(2), and how the application of this section has deviated sharply from precedent, as well as from the prescriptive language in the Charter itself. More discussion of the judicial confusion surrounding this section can be found in Eric’s post on Grant’s companion case.

Section 24(2) states that where “a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute” (emphasis mine). The criticism surrounding the application of this section arises due to courts appearing to ignore all these circumstances, and instead, placing too much emphasis on only one aspect of the s. 24(2) analysis.

Laskin explains this trend in the Grant decision. In order to determine whether the revolver should have been admitted into evidence at trial, he says that there are three factors relevant to the question, as set out in R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.), and reaffirmed in R. v. Stillman (1997), 113 C.C.C. (3d) 321. These factors are: the effect of admitting the evidence on the fairness of the trial; the seriousness of the Charter violation(s); and the effect of excluding the evidence on the administration of justice. But as Laskin rightly points out, a near-automatic exclusionary rule has arisen from a finding of the first Collins factor, rendering the latter two nearly invisible, and therefore not taking all circumstances into account as prescribed by the Charter.

The first factor, concerning the fairness of the trial, is typically assessed by questioning whether the accused, in violation of his Charter rights, has been compelled to incriminate himself at the behest of the state by means of a statement, the use of the body, or the production of bodily samples. Evidence obtained in such a way is referred to as “conscriptive.” Derivative evidence, a subset of conscriptive evidence, refers to conscriptive “real” evidence; that is, evidence obtained when the accused is conscripted against himself which then leads to the discovery of real evidence. The lawfully conscripted statement of the accused, in such a context, is the necessary cause of the discovery of the real evidence.

In the case at issue, Mr. Grant’s statements are characterized as conscriptive evidence, and the gun that was discovered as a result of those statements was derivative evidence. The only reason the police searched the appellant and found the gun was because of his admission; Mr. Grant made his inculpatory statement during an arbitrary detention, and thus in violation of his section 9 Charter rights. Additionally, the Crown cannot establish that the police could have found the revolver by non-conscriptive means, as the officers were adamant that without Mr. Grant’s statements, they would not have searched him. Thus, the arbitrary detention created the context in which the appellant admitted possession of the loaded revolver, and therefore the revolver is correctly classified as conscriptive real evidence.

This s. 24(2) assessment is uncontroversial; however, the prevailing judicial trend would automatically exclude the evidence at this point, by virtue of it being found to be conscriptive, and the other two Collins factors would effectively be ignored. This is where Laskin deviates from precedent, and expresses his well-founded criticism that ignoring the other two Collins factors is not true to the language of s. 24(2). He is not alone in his remarks. In addition to academic critique, there has been judicial dissention in this regard, most notably in R. v. Elias; R. v. Orbanski (2005), 196 C.C.C. (3d) 481 (S.C.C.), where Lebel J. and Fish J. both cautioned that the court had not established a pure exclusionary rule for conscriptive evidence. They did not want the other two factors in the analysis to become irrelevant either.

Laskin reads the justices’ remarks to reflect three important propositions: the admission of all conscriptive evidence will impact trial fairness; though it will impact trial fairness, its admission will not always bring the administration of justice into disrepute; and whether conscriptive evidence should be admitted depends on trial fairness, as well as the other two Collins factors.

Once Laskin frees himself from the chains of wayward precedent, he proceeds to analyze the conscriptive evidence with these propositions in mind, and devoid of the usual, automatic exclusion. Firstly, when assessing the primary Collins factor of trial fairness, Laskin says that two aspects should be considered: the potential effect of the state’s misconduct on the reliability of the evidence, and the nature of the police’s conduct that led to the accused’s participation in the production or obtaining of the evidence. He finds that the revolver is reliable (versus, for example, the reliability of a statement made when an accused’s right to counsel was violated). With regard to the nature of police conduct, Laskin explains that more invasive police interference will have a serious impact on trial fairness; conversely, the less invasive the interference, the less serious the impact on trial fairness. He cites R. v. Burlingham (1995), 97 C.C.C. (3d) 385 (S.C.C.) as an example of the former, and he sees Grant to be more indicative of the latter. While Mr. Burlingham was induced into admitting the location of a murder weapon after being continually questioned, denied his right to counsel upon request, and pressured into accepting a plea bargain, Laskin does not characterize Mr. Grant’s scenario in the same way. He does not think that the current case displayed flagrant police abuse, as the police were asking fairly innocuous, legitimate questions that were unaccompanied by physical threats.

As a result, the reliability of the evidence and the nature of the police’s conduct that led to its being obtained are on the lower end of the trial fairness scale. The impact was not so great, in Laskin’s view, to preclude consideration of the other two Collins factors, as is the current judicial trend.

Laskin therefore goes on to assess the evidence under the other two Collins factors. He finds that the violation was not serious; the questioning took place outside, where Mr. Grant would have a lesser expectation of privacy; in addition, the detention was brief, the questions minimally intrusive, and the police appeared to be acting in good faith. With regard to the third factor, Laskin finds that the evidence should be admitted because of the seriousness of the firearm charge (both due to Mr. Grant’s being in a public place, and in the vicinity of several schools), and because the evidence was reliable and crucial to the Crown’s case. All these factors demonstrate that the admission of the evidence would not exact too heavy a toll on the repute of the justice system.

On weighing all three Collins factors, Laskin concludes that admitting the evidence would not bring the administration of justice into disrepute. He therefore upholds the trial judge’s decision to affirm the convictions, while indicating serious deficiencies in the current assessment of evidence under s.24(2).

I agree with the OCA’s criticisms of the s.24(2) test. This uniquely Canadian rule manages respect the integrity of the judiciary, as it allows for the courts to remedy government encroachments upon individual freedom with evidentiary exclusion; yet simultaneously, the rule is appropriately discretionary, unlike the controversial American equivalent that automatically excludes evidence obtained in violation of their Bill of Rights. This careful drafting of s. 24(2) is being eroded by the growing trend of automatic exclusion of conscriptive evidence, and it is indeed time that the SCC reassert the importance of discretion in Canadian evidentiary disputes. The spring of 2008 carries the potential to rejuvenate the discretionary aspects of this rule, both in Shepherd and in Grant.