When is a Charter Breach Justified? R v Harrison and the Application of the Exclusionary Rule

Nearly one year ago today, the Ontario Court of Appeal (“ONCA”) decided that the 77 pounds of cocaine found by a police officer in the trunk of Bradley Harrison’s rented Dodge Durango was admissible evidence. The details of the appeal, as well as its preceding trial decision, have been summarized by Tom Schreiter here. Recently, discussion of this case prompted a public call for an overhaul of the rules governing the exclusion of evidence under s. 24(2) of the Charter. The Supreme Court of Canada’s (“SCC”) upcoming decision on the issue is therefore highly anticipated.

The ONCA Decision

The admissibility of evidence obtained through a Charter breach is often a contentious issue, and this case is no exception. Unsurprisingly, the ONCA decision was not unanimous. In his previous post, Tom astutely compared the majority’s decision to that of the dissent, writing that the two judgments diverged most notably in their application of one factor of the Collins test (stemming of course from the SCC’s landmark decision, R v Collins, [1987] 1 SCR 265).

The Collins test helps to determine whether evidence obtained through a Charter breach should be included under s. 24(2) of the Charter. The ONCA was unanimous in finding that Mr. Harrison’s s. 8 and 9 rights had been violated by the officer’s search of his vehicle. However, the court diverged when on the issue of whether this illegal search could be excluded under s. 24(2).

In its application of the third Collins factor, which addresses whether the exclusion of the impugned evidence would have a negative impact upon the administration of justice, two members of the court found that exclusion would more negatively impact the administration of justice than its admission. In its reasoning, the majority mentioned that the purpose of s. 24(2) is not solely to punish police misconduct; rather, it serves multiple purposes, and misconduct alone does not warrant the exclusion of evidence. The evidence was deemed admissible, and Mr. Harrison’s appeal was dismissed.

Writing in dissent, Justice Cronk disagreed. Among her other arguments, she stated that police conduct should be the overriding factor under the third prong of the Collins test. While evidence obtained as a result of inadvertent or inconsequential Charter breaches, or when the police acted in good faith, may be justifiably admitted Justice Cronk drew the line at evidence gathered through deliberate and serious Charter violations. In these latter cases, “the admissibility scales may tip the other way.” She believed that Harrison was such a case, and accordingly would have set aside the trial judge’s decision to admit the evidence. In her view, the administration of justice would have been brought into disrepute by admitting the cocaine under the circumstances.

Commentary

Tom anticipated that this decision would end up before the SCC, and he was correct. On December 9, 2008, the SCC heard Mr. Harrison’s appeal. The court was set to consider the point at which serious police misconduct, which leads to the discovery and seizure of real evidence of a substantial quantity of drugs, so taints the administration of justice as to require the exclusion of the evidence. As well, the court was asked to determine whether the balancing exercise of the third Collins factor under s. 24(2) requires a consideration of the fact that by admitting evidence obtained through a Charter breach, the court condones constitutional misconduct by police authorities.

The SCC has not yet rendered its decision in Harrison, but a recent Toronto Star article indicated that the case is being closely watched. Last week, a discussion of the case and its contentious application of s. 24(2) arose during an annual Ontario Bar Association conference in Toronto. While moderating one of the conference’s panel discussions, Justice Michael Moldaver expressed his concern that if courts continue to use s. 24(2) to exclude evidence obtained through police misconduct, there will be a “public loss of respect for the Charter.” He criticized, for example, the exclusion of gun or drug evidence due to the actions of one “rogue” officer, rather than a more systemic, operational problem with the entire police force.

As well, panellist Michal Fairburn noted that it is difficult for police officers to stay within the bounds of the law when the rules governing their searches are as complex as those surrounding s. 24(2). As a result of their controversial application and labyrinthine qualities, both Moldaver and Fairburn recommended that Parliament consolidate the current rules into simpler guidelines that will be more easily understood by officers and judges.

But Frank Addario, the president of the Criminal Lawyer’s Association, disagreed with this criticism. He said that police officers are more likely to stop breaking the law if judges continue to exclude such evidence. By following Moldaver’s lead, said Addario, “the message (from the courts) is … ‘take chances with civil liberties, cut corners – if you hit the jackpot, we will reward you by admitting the evidence.’” Addario said that rather than criticizing judges for applying the impugned s. 24(2) test, anger should be aimed towards “the police officer who made the deliberate decision to ignore the Charter.”

The parameters of the exclusionary rule will soon be brought into sharper focus by the SCC in the Harrison appeal. It is clear from the ongoing debate that these results will have a significant impact upon lawyers, judges, and most notably, the civil liberties of Canadians.