Severing Ties: Grant’s New Exclusionary Framework Applied in Harrison

Rewriting the Rules on the Exclusion of Evidence under S. 24(2)

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 (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.

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