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.

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.

The admissibility of evidence obtained through a Charter breach is often a contentious issue, and this case is no exception. Unsurprisingly, the OCA’s decision was not unanimous. In his previous post, Tom astutely compared the majority’s decision to that of the dissent, writing that the two judgments diverged most notably in their application of one factor of the Collins test (stemming of course from the SCC’s landmark decision, R. v. Collins [1987] 1 S.C.R. 265).

The Collins test helps to determine whether evidence obtained through a Charter breach should be included under s. 24(2) of the Charter. The OCA was unanimous in finding that Mr. Harrison’s s. 8 and 9 rights had been violated by the officer’s search of his vehicle. However the court diverged when on the issue of whether this illegal search could be excluded under s.24(2). In its application of the third Collins factor, which addresses whether the exclusion of the impugned evidence would have a negative impact upon the administration of justice, two members of the court found that exclusion would more negatively impact the administration of justice than its admission. In its reasoning, the majority mentioned that the purpose of s. 24(2) is not solely to punish police misconduct; rather, it serves multiple purposes, and misconduct alone does not warrant the exclusion of evidence. The evidence was deemed admissible, and Mr. Harrison’s appeal was dismissed.

Writing in dissent, Justice Cronk disagreed. Among her other arguments, she stated that police conduct should be the overriding factor under the third prong of the Collins test. While evidence obtained as a result of inadvertent or inconsequential Charter breaches, or when the police acted in good faith, may be justifiably admitted Justice Cronk drew the line at evidence gathered through deliberate and serious Charter violations. In these latter cases, “the admissibility scales may tip the other way.” She believed that was such a case, and accordingly would have set aside the trial judge’s decision to admit the evidence. In her view, the administration of justice would have been brought into disrepute by admitting the cocaine under the circumstances.

Tom anticipated that this decision would end up before the SCC, and he was correct. On December 9, 2008, the SCC heard Mr. Harrison’s appeal. The court was set to consider the point at which serious police misconduct, which leads to the discovery and seizure of real evidence of a substantial quantity of drugs, so taints the administration of justice as to require the exclusion of the evidence. As well, the court was asked to determine whether the balancing exercise of the third Collins factor under s. 24(2) requires a consideration of the fact that by admitting evidence obtained through a Charter breach, the court condones constitutional misconduct by police authorities.

The SCC has not yet rendered its decision in Harrison, but a recent Toronto Star article indicated that the case is being closely watched. Last week, a discussion of the case and its contentious application of s. 24(2) arose during an annual Ontario Bar Association conference in Toronto. While moderating one of the conference’s panel discussions, Justice Michael Moldaver expressed his concern that if courts continue to use s. 24(2) to exclude evidence obtained through police misconduct, there will be a “public loss of respect for the Charter.” He criticized, for example, the exclusion of gun or drug evidence due to the actions of one “rogue” officer, rather than a more systemic, operational problem with the entire police force. As well, panellist Michal Fairburn noted that it is difficult for police officers to stay within the bounds of the law when the rules governing their searches are as complex as those surrounding s. 24(2). As a result of their controversial application and labyrinthine qualities, both Moldaver and Fairburn recommended that Parliament consolidate the current rules into simpler guidelines that will be more easily understood by officers and judges.

But Frank Addario, the president of the Criminal Lawyer’s Association, disagreed with this criticism. He said that police officers are more likely to stop breaking the law if judges continue to exclude such evidence. By following Moldaver’s lead, said Addario, “the message (from the courts) is … ‘take chances with civil liberties, cut corners – if you hit the jackpot, we will reward you by admitting the evidence.’” Addario said that rather than criticizing judges for applying the impugned s. 24(2) test, anger should be aimed towards “the police officer who made the deliberate decision to ignore the Charter.”

The parameters of the exclusionary rule will soon be brought into sharper focus by the SCC in the Harrison appeal. It is clear from the ongoing debate that these results will have a significant impact upon lawyers, judges, and most notably, the civil liberties of Canadians.

The case is certainly controversial, and no less so because it is certain to end up before the SCC; it even caught the attention of the mainstream media, and generated an editorial from the Toronto Star, which can be found here. By the admission of the trial judge and the majority of the Court of Appeal, the police officer’s breaches of the Charter were flagrant and that he knew they were flagrant. Both courts nevertheless concluded that the evidence should be admitted.

Facts

Bradley Harrison and Sean Friesen rented a Dodge Durango at the Vancouver airport with the intention to drive straight to Toronto, sharing the driving responsibilities. They had two large cardboard boxes in the back which contained 77 pounds of cocaine, worth anywhere between $2.4M and $4.5M. They got as far as Kirkland Lake without incident, when Constable Brian Bertoncello decided to pull them over for driving without a front licence plate.

Once Constable Bertoncello had engaged his flashers and pulled right up behind the car, he noticed the plates were from Alberta and consequently it was legal to not have a front plate. He told the trial judge that the other cars on the road had seen him put his lights on, and the public appreciation for the “integrity for police” required him to stop the car.

Once he had stopped the car, he asked Harrison for his licence, registration and insurance; Harrison couldn’t find his licence, and the officer eventually ran a CPIC scan on both Harrison and Friesen. It turned up that Harrison’s licence was suspended, and Constable Bertoncello arrested him on that basis. He went further, however, and searched the car as an incident to the arrest, purportedly because Harrison “identified himself properly in the search for a driver’s licence, which I believe could be contained within the motor vehicle.” Before searching the vehicle, however, he repeatedly asked both Harrison and Friesen if they had either drugs or weapons in the car.

Trial Decision

Sean Friesen was acquitted at trial because his name wasn’t on the rental agreement and there was no evidence to show he had control over the boxes. The trial judge decided that Constable Bertoncello had arbitrarily detained Harrison and Friesen when he pulled them over in the first place. He also decided that the search of the vehicle after arrest was unreasonable. The test for including evidence obtained through Charter breaches is found in s. 24(2) of the Charter, and governed by the test first set down in R. v. Collins, [1987] 1 S.C.R. 265. After conducting the test, the trial judge concluded that though the Charter breaches were “extremely serious” they “pale in comparison to the criminality involved” of trafficking cocaine, and therefore admitted the evidence.

The trial judge convicted Harrison, and sentenced him to five years incarceration.

The Court of Appeal Decision

Harrison appealed only the conviction, and did so on three points of law: the evidence issue and two others. The Court of Appeal was unanimous in dismissing the two other grounds of appeal, and it is therefore unlikely that they will be discussed before the Supreme Court of Canada.

There was no question that Harrison’s s. 8 and s. 9 Charter rights were infringed by Constable Bertoncello. The majority, authored by O’Connor A.C.J.O., proceeded through the three prongs of the Collins analysis. The ultimate question is whether admission of the evidence would bring the administration of justice into disrepute. To answer that question, the court asks three sub-questions: (1) does the evidence affect trial fairness; (2) how serious was the Charter breach; and (3) would the exclusion of the evidence have a negative impact on the administration of justice. Justice O’Connor stressed that despite being a question of law, the admissibility of evidence under s. 24(2) is subject to considerable deference by appellate courts.

It was not contested by any party, or by the dissenting judge, that the evidence did not affect trial fairness. It was not conscripted from the defendant, merely obtained through police conduct in violation of the Charter.

Justice O’Connor agreed with the trial judge’s condemnation of the officer’s conduct. The officer’s explanation for stopping the vehicle was “contrived” and his conduct was “brazen and flagrant;” also the stated purpose of the search was not reasonable and “not conducted in good faith.” Despite these harsh words, however, Justice O’Connor and the trial judge both found that the Charter breaches were not “within the most egregious category of Charter breaches.” In making this conclusion, they point to the fact that the Charter breaches were likely not premeditated by the officer, nor part of a systemic pattern of Charter breaches. They also state that the effect of the Charter breaches were relatively minor: Harrison was detained on the roadside for fifteen minutes and the search “was of a car, nothing more” (i.e. as opposed to one’s person, house or office.)

Finally, the exclusion of the evidence, in the opinion of Justice O’Connor, could reasonably be seen to more negatively impact the reputation of the administration of justice than its admission. In coming to this conclusion, he pointed to the centrality of the evidence to the Crown’s case (and the lack of a case without the evidence), the obvious criminality of possession of that evidence, and the actual quantum of drugs in the possession of Harrison.

Justice O’Connor and the trial judge both went to great lengths to condemn the police officer’s conduct in this case; they did not wish to be interpreted as placing a “judicial condonation” on that sort of behaviour. Justice O’Connor also highlighted the fact that s. 24(2) is not intended to be a tool to censure police misconduct but instead serves multiple purposes, and that police misconduct is therefore not sufficient in itself to warrant the exclusion of evidence.

The Dissent

Despite words to the contrary, it was the position of Justice Cronk that any course of action other than excluding the evidence is an effective judicial condonation of the police misconduct at issue in this case.

She agreed with the majority on the first branch of the Collins test: i.e. trial fairness was not affected by the Charter breach. It was on the final two points where the OCA split.

Whereas the majority state clearly that they recognize the seriousness of the Charter breaches, Justice Cronk insists that one cannot recognize the seriousness of Charter breaches by mere words in a judgment and then go on to allow those breaches to adduce inculpatory evidence. She also dispensed with the factors the majority pointed to when highlighting the relatively non-serious nature of the Charter breaches. On the contrary, she argued, the trial judge made numerous and extensive findings that the Charter breaches were extremely serious. She also refused to accept the position that merely because a police officer’s actions are not systemic that therefore reduces their impact to negligibility: a single police officer severely breaching Charter is, at the end of the day, still severely breaching Charter rights.

The crux of the disagreement, however, rests in the final stage of the Collins analysis. The difference in opinion between the majority and Justice Cronk on the second factor is merely one of degree. She parts ways entirely on the third factor. While Justice O’Connor and the trial judge, she writes, were right to highlight the criminality of trafficking in cocaine, it is merely one factor of many. To treat it as conclusive, as the trial judge did, is a mistake. Justice Iacobucci wrote in Collins:

I underscore that 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. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying s. 24(2).

Using the criminality of an offence as the determinative factor would lead to the unsavoury conclusion that those accused of serious crimes simply do not have the full protection of the Charter.

Instead, the police conduct should be the overriding factor in third prong of the Collins test, which she eloquently sums up in the following two paragraphs:

My colleagues write that the admission of evidence where there has been a Charter breach should not be viewed, by itself, as a condonation by the court of the Charter breach. I agree that inherent to the third stage of the Collins analysis is the possibility that unlawfully obtained evidence may be admitted notwithstanding a Charter violation. Thus, for example, if evidence is obtained as the result of inadvertent or inconsequential Charter breaches or when the police acted in good faith, its admission may be justified.

But when a court is faced with evidence that was gathered by the police in deliberate and serious violation of their constitutional obligations, the admissibility scales may tip the other way. The claim that a police officer’s intentional constitutional misconduct has been condemned, rather than condoned, by the courts rings hollow when evidence deliberately obtained in serious violation of an accused’s Charter rights is relied on to secure a conviction.

Supreme Court of Canada

The appeal to the SCC was perfected on February 19, 2008, and docket information is available here.

The SCC will certainly have important issues in front of them. There is an unmistakable trend in favour of “law and order” politics on Parliament Hill. The views of the community form the core of the s. 24(2) analysis. This case will determine the extent to which the police can egregiously infringe the rights of citizens, when doing so is in the context of the prosecution of a serious crime. It will also be a good opportunity to discuss the proper amount of curial deference owed to a trial judge on s. 24(2) matters.

It should be remembered that, while as has been stated above, s. 24(2) is not a remedy for police misconduct, only police misconduct which uncovers criminal behaviour will lead to charges being laid. Unconstitutional police misconduct where, say, no drugs are found, go unchecked.

While the majority of the Court of Appeal raise many salient points, it is, in my opinion, unnerving the degree of leniency they allow to the police. It is difficult to imagine more severe breaches of Charter rights, short of those which are actual criminal offences on the part of the police (assaults, beatings, and unwarranted destruction of property.)

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