Donnohue Grant v Her Majesty the Queen: A Springtime Rebirth of the Collins Test?
Like my friend Eric Baum, I am also in the midst of studying for my Criminal Procedure exam. Appropriately, then, we have both (rather resourcefully) grabbed hold of the opportunity to explore our understanding of the Charter’s exclusionary rule, section 24(2). The case discussed in Eric’s post, Curtis Shepherd v Her Majesty the Queen [Shepherd], is a companion case to the one I review below. The Supreme Court of Canada (“SCC”) has also given leave to appeal in Donnohue Grant v Her Majesty the Queen [Grant], to be heard in the spring. In conjunction with Shepherd, this highly anticipated case will surely have much to say about the application of section 24(2), particularly with regard to the automatic exclusion of conscriptive evidence.
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 (“OCA”) 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,  1 SCR 265 [Collins], and reaffirmed in R v Stillman,  1 SCR 607. 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,  2 SCR 3, 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,  2 SCR 206 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.