R v Ramage: Unreasonable Seizure of Bodily Evidence in the Aftermath of R v Grant
This past Monday (March 1, 2010), the Ontario Court of Appeal heard arguments from Rob Ramage’s lawyers in the appeal of their client’s convictions and sentence for dangerous driving and impaired driving (see R v Ramage, 2007 CanLII 37683 (ONSC) [Ramage]). What is of note in this case, beyond the former Toronto Maple Leaf captain’s public image, is the application of the section 24(2) analysis in excluding evidence from the recent Supreme Court of Canada (“SCC”) decision in R v Grant, 2009 SCC 32 [Grant]. This appeal is the first major test in Ontario of how the principles in Grant will be applied in Ontario.
Rob Ramage was driving a rental car with his friend Keith Magnuson in December 2003, when he lost control of the vehicle and smashed into two oncoming vehicles. Magnuson was killed, and Ramage sustained serious injuries. Ramage was arrested and placed in the custody of Constable Andrew Cole. As Ramage lay on a hospital bed, heavily injected with morphine to blunt the pain of his wounds, he asked to go to the washroom and was handed a plastic cup. When he was finished, Constable Cole asked Ramage if he could have the urine. Ramage reportedly responded, “yeah, yeah”. This sample was a crucial piece of evidence at trial, as it showed that Ramage’s blood alcohol level greatly exceeded the legal limit.
At trial, it was argued that the police violated Ramage’s rights under section 8 of the Charter (the right to be secure from unreasonable search and seizure). The Crown conceded there had been a violation of section 8, as Constable Cole had neither a warrant nor informed consent. The defence argued that evidence should be excluded under section 24(2) of the Charter. The trial judge ultimately held that: the breach was minimal; the police did not employ any force, violence, or threats; and, this case was analogous to the facts in R v Stillman,  1 SCR 607 [Stillman], where the SCC held the administration of justice would not be brought into disrepute if a discarded tissue was admitted in evidence.
The defence is currently appealing this decision, arguing that the taking of a bodily substance without a warrant constitutes a serious violation of the Charter. As Osgoode’s very own Alan Young states, where officers have an opportunity to obtain evidence through proper channels (such as by procuring a warrant) and deliberately choose not to do so, the violation of the Charter rights becomes extremely serious. Courts may be willing to cut the officers some slack where there is legal uncertainty (in Grant, for example, what constituted detention was an open question), but the law in this area is crystal clear.
Although the trial judge makes reference to the appellate court decision in Grant, it is the later SCC decision which ultimately set out the proper analysis for section 24(2). There are three lines of inquiries to be pursued:
- How serious was the state’s infringing action? The concern at this stage is that admittance of the evidence may send the message that the state condones the wrongful action which led to the evidence. The more willful or flagrant the breach, the more likely the evidence will be excluded.
- What was the impact of the breach on the individual’s rights? The greater the impact, the more likely the public will perceive that the individual person’s rights count for naught. Evidence obtained as a result of more intrusive or demeaning breaches is thus more likely to be excluded.
- What is the societal interest in the adjudication of the case on its merits? The truth seeking function of a trial and deciding a case properly on its merits will generally argue for the admission of the evidence, so that an accurate result can be reached.
The trial judge’s function is to pursue these lines of inquiry, then weigh the evidence and balance the competing factors. Although Justice Sosna did not have the benefit of the SCC decision in Grant, we are aided by the majority’s remarks on bodily evidence. Writing for the majority, Chief Justice McLachlin and Justice Charron state:
While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted.
Was this intrusion on bodily integrity deliberately inflicted? In oral argument Monday, Ramage’s counsel alleged that, “[i]t was willful. It was deliberate and it was a clear violation of Ramage’s right”. The Crown argued incompetence, rather than bad faith, served as the impetuous for Constable Cole’s actions. Justice Sosna made no findings on this issue.
Justice Sosna did, however, find that the conduct of Constable Cole fell short of being characterized as “flagrant and egregious.” As the majority in Grant stated with regard to the seriousness of the breach:
The degree to which this inquiry militates in favour of excluding the bodily evidence will depend on the extent to which the conduct can be characterized as deliberate or egregious (emphasis added).
Consequently, conduct that is not egregious will generally not support the exclusion of resulting evidence, since there is little concern that the public will perceive the state as condoning improper police action.
In addition, Justice Sosna found any intrusion to the bodily integrity was minimal because the intrusion was made absent any force, violence or threats. It would be difficult to argue that Ramage’s dignity was adversely affected by the seizure of the sample, since in reality he had already urinated into a cup in front of Constable Cole. While it is true that a urine test could reveal certain matters, the expectation of privacy could be no greater than that of a used tissue in Stillman or the hypothesized plucked hair in Grant, where the privacy interest was “slight”.
In the recent Supreme Court decision R v Beaulieu, 2010 SCC 7, the Court considered a pre-Grant case involving the potential exclusion of evidence under s. 24(2). While the trial judge and the Court of Appeal did not have the benefit of the new Grant analysis, the Supreme Court noted the relevant s. 24(2) factors have not changed. In that case, the trial judge found police officers did not evidence a “flagrant disregard” of the respondent’s Charter rights. As the Supreme Court wrote:
[The Judge’s] assessment of the facts was not unreasonable, not did she make a palpable and overriding error in her analysis. Her determination deserved deference.
In the Ramage case, Justice Sosna considered the proper factors and made no unreasonable findings. Accordingly, deference should be paid to those findings, and the appeal should be dismissed.
I note in passing that, canvassing news articles regarding the grounds of appeal, public sentiment has been overwhelmingly critical of the appeal. Not a single comment viewed expressed concern that state was condoning improper police action or that an individual’s rights weren’t being taken seriously. The vast majority echoed sentiments that due to “technicalities” or “amoral lawyers” there was a very real possibility that a proverbial smoking gun could be excluded, letting a guilty individual walk (or, in this case, drive) free.
I believe this is what was referred to in Grant as the “public interest in the proper adjudication of the case on its merits.” When not outweighed by the other lines of inquiry, evidence should not be excluded lest it undermine the already eroding public support of our judicial system. The public has already lost faith in Rob Ramage, a former pillar of our society; let us hope this sorry affair does not also deprive them of a pillar of our justice system: the truth.