Competing Roles; or, How Do You Solve a Problem Like the Administration of Justice?

We are coming up on one full year since the Supreme Court heard the appeals for R. v. Grant and R. v. Shepherd, which — along with R. v. Harrison (also awaiting judgment) — represent a holy triptych dealing with the admissibility of unconstitutionally obtained evidence under section 24(2) of the Charter. Grant and Shepherd were before the Court on April 24, 2008 while Harrison was heard last December. How the three cases are decided could cause a seismic shift with regard to how courts approach the section 24(2) analysis.

We at 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.

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