New test for tainted evidence

The Supreme Court of Canada has laid down new guidelines for judges dealing with tainted evidence, but exactly how the rulings in four companion cases will impact criminal accused remains to be seen.

Sack Goldblatt Mitchell LLP lawyer Jonathan Dawe, who represented the intervener Canadian Civil Liberties Association in R. v. Harrison, says he was “heartened” by the court’s decision in that case.

“We were very concerned about the idea that deliberate and flagrant police misconduct could be essentially trumped by the seriousness of the offence,” he says. “The court’s very clearly said that’s not the case - that intentional violations of the Charter have very serious implications for the repute of the administration of justice.”

Queen’s University law Prof. Donald Stuart, who represented CCLA as intervener in R. v. Grant, says, “I think the Supreme Court should be congratulated for coming up with a new criteria and whole new regime.”

He adds, “I think it’s quite an imaginative judgment and it recognizes that there have been problems in both of these areas, and the court’s spent a lot of time and taken a lot of care in trying to come up with criterion that are more sensible and more workable.”

While the court ruled in three of the four cases to permit illegally obtained evidence, it also threw out a $4-million cocaine seizure in Harrison. In acquitting Bradley Harrison, Chief Justice Beverley McLachlin wrote, “In sum, the conduct of the police that led to the Charter breaches in this case represented a blatant disregard for Charter rights. This disregard for Charter rights was aggravated by the officer’s misleading testimony at trial. The police conduct was serious, and not lightly to be condoned.”

She went on to comment, “In summary, the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. That being the case, the admission of the cocaine into evidence would bring the administration of justice into disrepute. It should have been excluded.”

In ruling on Harrison, the court applied the new framework it set out in the companion case of Grant. There it was asserted that judges must consider three factors when deciding whether to admit evidence that could bring the administration of justice into disrepute: the seriousness of the Charter-infringing state conduct; the impact of the breach on the Charter-protected interests of the accused; and society’s interest in the adjudication of the case on its merits.

“The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by s. 24.2. We expect police to adhere to higher standards than alleged criminals,” wrote McLachlin.
“In summary, the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards.”

While the court threw out the chargers in Harrison, it upheld convictions in Grant and the two other companion cases, R. v. Shepherd and R. v. Suberu.

In Grant, the court upheld convictions against Donnohue Grant. He was intercepted by police in 2003 while walking on a sidewalk in Toronto, and ended up admitting to possessing marijuana and a gun. Grant’s charge of possession of a firearm for the purposes of trafficking was overturned by the top court, but other firearms offences were upheld.

“Unlike the situation in R. v. Harrison, the police officers here were operating in circumstances of considerable legal uncertainty,” wrote McLachlin. “In our view, this tips the balance in favour of admission, suggesting that the repute of the justice system would not suffer from allowing the gun to be admitted in evidence against the appellant.”

In Shepherd, the court dismissed an appeal on an impaired driving charge from Curtis Shepherd. It determined that a police officer had enough evidence to believe Shepherd’s ability to drive had been impaired by alcohol.

In Suberu, Musibau Suberu’s conviction for possessing stolen property under $5,000 was upheld. The court determined that Suberu’s s. 10(b) Charter right was not infringed by police questioning during an investigation into an alleged credit-card fraud operation.

Stuart says the new framework will lead to plenty of work for lawyers and judges.
“Pretty well all of the previous law is irrelevant now, so we’ve got to start afresh,” he says.

While there has already been much debate over whether the new framework will lead to an increase or reduction in excluded evidence, it will take “several years” for the dust to settle, says Stuart.

“By far the most important thing for me is that the court decided that on the decision whether to exclude evidence, the most important thing is not the category of evidence, but how serious was the violation,” he says. “They’ve said the seriousness of the violation is a much more important consideration than the seriousness of the offence.”

Stuart suggests the Grant decision is a “real wake-up call” for police forces.
“If law enforcement people and Crowns, for example, are concerned about the dramatic effect of excluding 32 kilos of cocaine, I think then there’s an impetus on the police to train themselves to respect the Charter,” he says.

Dawe, who also represented Grant, has some concerns about the court’s new approach to s. 24.2. The judgment does not identify the reason for “such a radical rewriting” of the law in this area, he says.

“This is an area that over the last 20 years a principled position had emerged, and in fact 10 years ago [in R. v. Stillman] the court had actually called for a rehearing in order to canvass all the views,” says Dawe.

“The majority of the court decided to adopt a certain set of principles, which gave primacy to the principle of self-incrimination, and they did it in quite strong language.” The court went so far to say it would be “unthinkable” for an individual to be convicted at trial based on compelled self-incriminatory evidence, he says.
But the court has shifted its stance on that issue, says Dawe.

“Now, in essence, we have the court saying it wouldn’t really be unthinkable after all; it’s actually OK sometimes,” he says.

Criminal Lawyers’ Association president Frank Addario issued a statement following the decisions, and said the new test should put to rest any fears from the judiciary that the public does not comprehend why tainted evidence must at times be excluded.

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