In Shepherd, the court dismissed an appeal on an impaired driving charge by Curtis Shepherd. The appellant was charged with impaired driving, driving over 80, and failing to stop for a police officer. At trial, he attempted to exclude two breath samples taken after his arrest on the basis that they were obtained in violation of section 8 of the Charter. After much deliberation, the SCC concluded that the police officer had enough evidence to believe on reasonable and probable grounds that Mr. Shepherd’s ability to drive had been impaired by alcohol, in accordance with section 8 of the Charter.

Although the other three cases dealt with section 24(2) of the Charter, the SCC in Shepherd chose to focus on section 8 of the Charter, leaving the section 24(2) of the Charter analysis to Grant. The court concluded that it was “unnecessary to address the submissions regarding the exclusion of the breath samples under s. 24(2) of the Charter.” However, it noted that, “the s. 24(2) issues argued by counsel on appeal are fully canvassed in Grant, released concurrently.”

For a further s. 24(2) analysis of Shepherd and a detailed background of the case, I would recommend revisiting Eric Baum’s TheCourt.ca post here. Below is a brief summary of the necessary facts and procedural background of the case.

Brief background
On January 11, 2003, Sergeant Sellers of the Saskatoon City Police Service saw Mr. Shepherd’s vehicle first fail to stop at a stop sign and then drive 20-25 kilometers per hour over the posted speed limit. Turning his siren on in an attempt to get Mr. Shepherd to stop failed to have the desired effect, and Mr. Shepherd continued to accelerate and change lanes for three more kilometers before finally coming to a stop.

When asked for a reason for his errant behavior, Mr. Shepherd stated that he believed the car following him was an ambulance. After inspecting Mr. Shepherd, Sergeant Sellers determined that Mr. Shepherd was intoxicated based of a number of factors: his lethargic and fatigued attitude, his red eyes, his slow and deliberate movements, and his breath that smelled of alcohol.

At trial, the trial judge accepted that Sergeant Sellers subjectively believed that the Mr. Shepherd’s ability to drive was not impaired by alcohol; however, this belief was not objectively reasonable. The trial judge acquitted Mr. Shepherd of all charges. This Crown appealed this decision. The Saskatchewan Court of Queen’s Bench, again, ruled in favor of Mr. Shepherd, upholding the trial judge’s decision. On further appeal, the Saskatchewan Court of Appeal allowed the Crown’s appeal and ordered a new trial. Justice of Appeal Sherstobitoff concluded that Sergeant Sellers had reasonable and probable grounds to believe that Mr. Shepherd was driving when impaired by alcohol.

“Reasonable and Probable Grounds” as per section 8 of the Charter
Mr. Shepherd claimed that Sergeant Sellers lacked the grounds to make a demand for a breathalyzer; therefore, his breath samples could not be used as evidence as they were obtained in violation of section 8 of the Charter.

As set out in Hunter v. Southam, (1984) 2 S.C.R. 145, the party seeking to justify a warrantless search must be required to rebut a presumption of unreasonableness.

To rebut the presumption of unreasonableness, the courts used the three criteria set out in R. v. Collins, (1987) 1 S.C.R. 265. The Crown had to establish (i) that the search was authorized by law, (ii) that the law authorizing the search was reasonable, and (iii) that the manner in which the search was carried out was reasonable. The courts concluded that “[n]o issue is taken with the manner in which the search was carried out or in the reasonableness of the breath demand provisions in the Code. Rather, the only question is whether the arresting officer complied with the statutory pre-conditions for a valid breath demand.”

The court in Collins stated that where evidence is obtained as a result of a warrantless search, the onus is on the Crown to show that the search was reasonable. Here, however, the onus is on the Crown to prove that the officer had reasonable and probable grounds to make the breathalyzer demand. A subjective and an objective component are required to establish reasonable and probable grounds, as set out in R. v. Bernshaw, (1995) 1 S.C.R. 254. In this case, the courts believed that the officer had a subjective belief in Mr. Shepherd’s intoxication. However, the courts disagreed whether the officer’s subjective belief was reasonable in the circumstances. The trial judge concluded that on the totality of the circumstances, the officer’s subjective belief was not objectively reasonable. However, the SCC found that the trial judge erred in this finding, stating that “[t]he officer’s belief was based not only on the accused’s erratic driving pattern but also on the various indicia of impairment which he observed after he arrested Mr. Shepherd.” The SCC concluded that the officer had reasonable and probably grounds to make the breath demand.

Conclusion
Although, the Collins test with regard to section 24(2) of the Charter has been under consideration recently, and has been considered much overdue for review and modification, the test for section 8 of the Charter has had no such luck. The Charter analysis in Collins has been reinforced in Shepherd. The three-step test in Collins and Hunter continues to maintain its precedence status and will continue to be used in violation of section 8 of the Charter analysis.

When looking at section 8 of the Charter analysis, it is clear that the “totality of the circumstances” have to be taken into consideration. Furthermore, a very deliberate distinction between subjective and objective reasoning has been set out. The courts look at all the circumstances and determine whether section 8 of the Charter has been violated. Any changes to this analysis adopted by the courts when dealing with section 8 of the Charter violations will have to wait until the next time the courts deal with such a situation. Until then, as always, we wait and see.

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 case, Curtis Shepherd v. Her Majesty the Queen (30237), offers interesting insight into the judicial assessment of reasonable and probable grounds for arrest. Ultimately, however, the case is an important one for what the majority decision only notes en passant, the questionable utility of the automatic exclusion of conscripted evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms.

The Facts:
In the early morning hours of January 11, 2003 a Saskatoon police officer witnessed Curtis Shepherd failing to fully stop at a stop sign while driving his car. By the time the officer caught up with him, Shepherd had accelerated well beyond the speed limit. At the time, the officer was driving a large, white Ford Explorer SUV, which although equipped with standard police markings and overhead emergency lights and sirens, lacked any police markings on its all-white front end.

After following Mr. Shepherd for a kilometer at excessive speeds, the officer activated his emergency equipment, indicating his intention to pull Shepherd over in order to perform a check stop. Shepherd responded by pulling into the right lane and reducing his speed, however, he did not stop his car. When, with lights and sirens still activated, the officer proceeded to follow the driver into the right-hand lane, Shepherd surprisingly pulled across the entire highway into the leftmost lane.

Thus began what the officer understood to be a police pursuit which involved not only a series of proper and improper lane changes and excessive rates of speed, but also a seemingly lawful stop at an intersection with a red light. Finally, after turning onto another street, Mr. Shepherd shut off his vehicle and was instructed to exit, at which time the officer indicated to Shepherd that he was being arrested for failing to stop for police.

Mr. Shepherd’s response was unequivocal. He informed the officer that he thought that the vehicle “chasing” him had been an ambulance, not a police car. Although the driver’s vehicle seemed to be under control during the “pursuit,” the officer’s observations of Shepherd revealed that he had had red eyes, seemed fatigued and lethargic, and smelled of alcohol. The officer also noted that Shepherd’s speech and actions were slow and deliberate, but were so without slurring or staggering.

Upon taking into account all the above factors, the officer concluded that he had reasonable and probable grounds to believe that Shepherd’s ability to drive was impaired by alcohol. The officer proceeded to read Shepherd his ss. 10(a) and 10(b) Charter rights and make a breath test demand. Mr. Shepherd was then transported to a detention centre where the breath samples were taken.

Trial Court
The trial judge ruled that the officer did not have sufficient grounds to arrest Shepherd. This conclusion was based on the finding that while in the officer’s own mind (i.e. subjectively) there were reasonable and probable grounds for an arrest, objectively (i.e. in the eyes of the “reasonable person”) there were not (although there were certainly grounds for an investigatory detention in the form of a roadside ALERT test). A central factor in coming to this determination was the trial judge’s balancing of the reasonableness of Shepherd’s explanation for his manner of driving:

My conclusion is based not only on what the police officer observed but upon the explanation that is reasonable to me as to why these activities – some of the conduct of the accused took place (at 168).

Upon determining that the objective branch of the test had not been met, the trial judge utilized his discretion under s. 24(2) of the Charter to exclude the breath test Certificate of Analysis from evidence. This exclusion resulted in an acquittal on all charges.

Court of Appeal
The Saskatchewan Court of Appeal’s decision was authored by Justice Sherstobitoff, who found that the trial judge had placed undue weight on the driver’s explanation in light of the other factors:

[A]ssuming the explanation to be true, it explained nothing. It did not explain the red eyes, the smell of alcohol, or his lethargic or slack-jawed appearance…[I]t did not explain why he kept driving for three kilometers at a high rate of speed while a vehicle with emergency lights flashing followed his every move (at para. 12).

Thus, upon the totality of the circumstances, Justice Sherstobitoff concluded the officer did, indeed, have sufficient objective grounds for arrest, and that a new trial was warranted.

In a concurring decision, Justice Lane agreed with Justice Sherstobitoff’s conclusions for quite different reasons. According to Justice Lane, the trial judge’s assessment of the reasonableness of the explanation was based on a false premise. For implicit to the validity of Shepherd’s explanation must be an acceptance that Shepherd was merely complying with Saskatchewan law as it relates to motorists who are approached by emergency vehicles on a public highway.

Although he initially pulled over to the right, Shepherd did not wait for the “emergency vehicle” to pass before he entered any subsequent intersection, thus his actions were not in accordance with s. 67(8) Highway Traffic Act, and could not be reasonably explained as such:

Without this compliance with the Act, one could only come to the conclusion the respondent’s explanation was not reasonable…This then leaves only the officer’s evidence and the trial judge found the officer to have a reasonable belief the respondent’s ability to operate a motor vehicle was impaired by alcohol. A conviction ought to have followed (at para. 21).

While neither of the two majority reasons are particularly surprising, the reader is immediately struck, however, by the odd bit of conjecture both judges used in their respective concluding paragraphs. Using identical language, both Justice Sherstobitoff and Justice Lane took pains to explicitly note that even if the police officer had been found to not objectively have had reasonable grounds (which he had), an automatic exclusion of the breath test evidence would have been wholly inappropriate and could, itself, have brought the administration of justice into disrepute.

Analysis:
Although flying in the face of renown precedents such as R v. Collins and R. v. Stillman, the voicing of judicial disdain for the automatic exclusion of unconstitutionally obtained evidence has grown increasingly strident. Perhaps inspired by the dissent of Justices LeBel and Fish in R. v. Orbanski; R. v. Elias, large swaths of Canada’s lower court judges have come to express the view that the SCC simply got it wrong when it declared that s. 24(2) offered a pure exclusionary rule in cases involving so-called “conscriptive” evidence. The source of the problem isn’t hard to find.

Somewhat sheepishly, Collins represented the SCC’s first opportunity to wrestle with section 24(2). There, Justice Lamer listed a number of factors that should be analyzed and balanced when considering evidence obtained in an unconstitutional manner. These factors can be grouped into three branches, the first of which dealt with the relationship between the evidence and the fairness of the trial.

Part and parcel of the consideration of trial fairness under Collins was a determination of the nature of the evidence obtained. This determination unfortunately operated along a rather vague distinction drawn between “real” evidence (e.g. guns, drugs, documents, etc) on the one hand and “self-incriminating” or “conscriptive” evidence (e.g. statements) on the other.

Ultimately this dichotomy proved to confuse far more than it elucidated. This was particularly the case where statements made to police by an accused who had not properly been given his right to counsel led police to discover “real” evidence.

Thus in Stillman, the SCC attempted to refine its terminology, give the exclusion rule better definition and further explain the relationship of trial fairness to the other two branches of the Collins test (i.e. the seriousness of the violation, and the repute of the administration of justice).

Justice Cory clarified that the essential distinction at play was that between “non-conscriptive” and “conscriptive” evidence. Whereas non-conscriptive evidence would not necessarily undermine trial fairness, and thus should be further considered under the complete Collins test, the admission of conscriptive evidence would invariably undermine the fairness of the trial  and must therefore be excluded automatically.

Moreover, Justice Cory expanded the definition of conscriptive evidence to include not only self-incriminating statements, but other self-incriminating evidence produced either through the use of an accused’s body (e.g. fingerprints) or through the procurement of bodily samples (e.g. blood, hair, breath, etc).

Despite further attempts to refine and improve the present application of 24(2), opposition to the Collins/Stillman line of cases has continued unabated. Much of the opposition to the SCC’s creation of an automatic exclusion rule under 24(2) has taken shape along two lines of critique. First, many critics have been quick to note that an automatic exclusion is inconsistent with the words of section 24(2), which expressly implores a consideration of “all the circumstances”. Nor does such an automatic exclusionary rule follow the spirit of balancing envisioned by the framers of section 24(2), who considered the mechanistic American approach to exclusion of unconstitutionally obtained evidence to be misguided. An automatic rule discards the discretionary flexibility that would otherwise be available to judges when considering serious criminal infractions brought to justice through constitutional breaches of only a technical, inadvertent or good faith nature. It is this concern that the decision in Shepherd registers clearly.

Second, critics have recognized that the automatic exclusion of conscriptive evidence works to effectively create a hierarchy of rights that has no basis in section 24(2). Indeed, one is hard pressed to explain why an unconstitutionally obtained breath sample of a drunk driver is so fundamentally different from an unconstitutionally seized suitcase of a drug dealer that it should allow for the short circuiting of a full analysis under the Collins test. Even in the case of self-incriminating statements, critics ask, what makes the right to counsel of such importance that a good faith or technical Charter violation necessarily brings the administration of justice into disrepute whereas an egregiously unreasonable search does not?

In effect, cases such as Shepherd, and its companion Donnohue Grant v. Her Majesty the Queen (31892), both of which are scheduled to be heard in April, represent a call to the SCC that many among the country’s judiciary are expecting a considerable change in direction. In this author’s opinion, it is likely that the SCC will heed the call.