R v Curtis Shepherd: A Not-So Subtle Call to Revisit s. 24(2)
Undeniably, December is a busy time for those of us within the law school environment. As a helpful review for the students across the country, who like myself, are anxiously preparing to write a Criminal Procedure exam, I thought I’d offer the details of a Saskatchewan criminal law case scheduled to be heard before the Supreme Court of Canada (“SCC”) in the early Spring of 2008.
The case, Curtis Shepherd v Her Majesty the Queen [Shepherd], 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 Charter.
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.
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 (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 (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, RSO 1990, c H 3, 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 (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.
Although flying in the face of renown precedents such as R v Collins,  1 SCR 265 [Collins], and R v Stillman,  1 SCR 607 [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,  2 SCR 3, 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, 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.
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