Skip to content

A Criminal Mind: Excluding ill-gotten evidence necessary

Excluding relevant evidence from a criminal trial — especially where it leads to the acquittal of a guilty accused — is never a very popular business, but it’s sometimes necessary. Section 24(2) of the Charter says the point is to avoid bringing the administration of justice into disrepute. Courts have been trying for more than 30 years to give meaning to this vacuous phrase, and provide some structure to its application.

It’s a difficult problem, since the words of s. 24(2) really only tell us that exclusion isn’t automatic, as the American exclusionary rule is reputed to be. Giving some kind of predictable structure to the analysis has been a long-term challenge for the courts at all levels.

The Ontario Court of Appeal’s recent decision in R. v. McGuffie, 2016 ONCA 365 is an important reminder that s. 24(2) has work to do in maintaining police respect for civil liberties — and that it needs real teeth if it’s going to carry out that work. Late one night in December 2011, the Ottawa Police responded to a tip that some guys were passing a handgun around in a bar. When the police arrived, two men hurrying away from the premises quickly caught their attention. Phillip McGuffie was one of them. The officers stopped him, asked him some questions, and patted him down — no handgun was found. Lacking grounds to arrest, Const. Greenwood nonetheless decided to put him in the back of a fellow officer’s cruiser, handcuffed, while he went back to continue the investigation at the bar. McGuffie was kept there for more than half an hour, then subjected to yet another search. This one turned up a package of cocaine in McGuffie’s shirt pocket. Now under arrest, McGuffie was not availed of his right to counsel, but he instead was taken back to the station and forced to submit to an unnecessary strip search.

The trial judge wasn’t impressed with the lead officer’s conduct and found a number of Charter breaches.

However, he opined that the actions of the other officers were “textbook” and was, therefore, satisfied that there wasn’t any systemic problem with the conduct of the Ottawa Police. Above all, the trial judge emphasized the purported seriousness of the offence — cocaine trafficking — as the factor demanding admission of the evidence. The evidence went in and McGuffie was convicted.

On appeal, in characteristically lucid fashion, Justice Doherty explained why this result couldn’t stand.

Egregious Charter infringements aren’t mitigated by the fact that only one officer carried them out.

Evidence of a systemic problem may be aggravating, but the absence of such evidence can’t be a point in the “admission” column.

Most significantly, Justice Doherty made clear that when the “seriousness of the police conduct” and the “impact of the breach” weigh strongly in favour of exclusion, the “seriousness of the offence” will rarely if ever suffice to tip the balance the other way. On the merits, Justice Doherty considered this to be an “overwhelming” case for exclusion. A sustained course of police conduct evinced a total lack of concern for the accused’s rights to be free from arbitrary detention, unreasonable search and seizure, and to obtain the assistance of counsel. Excluding the evidence — and acquitting the accused — was the only way in which the court could “disassociate the justice system from the police misconduct and reinforce the community’s commitment to individual rights.”

Disassociating the justice system from serious police misconduct is the exclusionary rationale given official benediction by the Supreme Court in the leading case of Grant (2009). This is a symbolic gesture and perhaps an important one, but to my mind the more compelling case for excluding evidence is to discourage similar conduct from being committed in the future. The main reason we should want a guilty person like McGuffie to have a remedy is to lessen the likelihood of similar unconstitutional conduct being perpetrated against the innocent — who after all won’t be charged and will, therefore, have no forum in which to obtain redress. Call this the “deterrence” rationale. True, deterrence has a bad name because of its overuse in the sentencing context, where it tends to lack empirical support. But there is a vast difference between assuming that judicial decisions can affect criminal behaviour, which tends to be impulsive and ill informed, and positing that critical guidance provided by one branch of state power (the judiciary) to another (the police) can meaningfully constrain official action. If the message doesn’t get through, for whatever reason, the authorities have only themselves to blame.

The role of the exclusionary remedy in controlling state overreach looms large in a case recently argued before the newly Scalia-less U.S. Supreme Court. In that case, Utah v. Strieff, police detained a suspect without legal grounds — but then ran a check and discovered he had an outstanding “warrant” for a minor traffic violation. So they arrested and searched him, finding some meth in his pocket. Should the meth be excluded as the fruit of the initial illegal stop? Or did the subsequent discovery of the warrant erect a halo of legality over the entire transaction? At oral argument, Justice Sonia Sotomayor invoked Ferguson, Mo., where a high proportion of non-white residents have outstanding “warrants” of some kind or another. What would stop  police from searching anyone on a mere hunch, she asked?

We’ve never had an exclusionary “rule” like the Americans, since s. 24(2) mandates a case-by-case balancing. But courts need something resembling a rule in order to provide predictability to litigants and a measure of deterrence to law enforcement. Justice Doherty’s formulation seems to be a good start: Where the offending police conduct is both culpable in nature and significant in extent, exclusion should follow.

Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at

cover image


Subscribers get early and easy access to Law Times.

Law Times Poll

Lawyers say that the federal justice minister’s response to recommendations by a House of Commons committee on how to improve legal aid in Canada is disappointing. Is more funding needed beyond what was promised in the recent federal budget?