Two Important Supreme Court of Canada cases released this morning

The Supreme Court of Canada just released two important decisions today dealing with the exclusion of evidence in the face of unconstitutional conduct by the State.  The cases also deal with when someone is "detained".  Each decision is careful and deserves a full reading – a brief summary of some of the law and a few passages from each case follows:

 

R. v. Harrison, 2009 SCC 34

 

In considering exclusion of evidence the three lines of inquiry are relevant to determining whether the admission of the evidence would bring the administration of justice into disrepute are:  (1) the seriousness of the Charter‑infringing state conduct; (2) the impact 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. 

 

The Court writes:

 

[21]                          Breaches of the Charter established, the question is whether the evidence thereby obtained should be excluded under s. 24(2) of the Charter.  The test set out in s. 24(2) is simply stated: would the admission of the evidence bring the administration of justice into disrepute? Grant identifies three lines of inquiry relevant to this determination. Once again, they are:  (1) the seriousness of the Charter infringing state conduct (2) the impact 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. …

 

 

R. v. Grant, 2009 SCC 32     

 

Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.  In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.  To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:  (a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual; (b) the nature of the police conduct; and (c) the particular characteristics or circumstances of the individual where relevant.  To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements.  In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go.  It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual's right to choose, and conduct that does not.  Deference is owed to the trial judge's findings of fact, although application of the law to the facts is a question of law. 

 

  The right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes.   

 

The criteria relevant to determining when, in "all the circumstances", admission of evidence obtained by a Charter breach "would bring the administration of justice into disrepute" must be clarified.  The purpose of s. 24(2), as indicated by its wording, is to maintain the good repute of the administration of justice.  Viewed broadly, the term "administration of justice" embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.  The phrase "bring the administration of justice into disrepute" must be understood in the long‑term sense of maintaining the integrity of, and public confidence in, the justice system.  While exclusion of evidence resulting in an acquittal may provoke immediate criticism, s. 24(2) does not focus on immediate reaction to the individual case.  Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence.  The inquiry is objective.  It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.  Section 24(2)'s focus is not only long‑term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice.  Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.  Section 24(2)'s focus is also societal.  Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. 

 

 

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter‑infringing state conduct, (2) the impact 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.  At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence.  The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.  The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right.  The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.  At the third stage, a court asks whether the truth‑seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.  Factors such as the reliability of the evidence and its importance to the Crown's case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case.  Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. 

 

The Court writes:

 

 

[29]                          The language of ss. 9 and 10 is consistent with this purpose-based approach to detention.  The pairing of "detained" and "imprisoned" in s. 9 provides textual guidance for determining where the constitutional line between justifiable and unjustifiable interference should be drawn. "Imprisonment" connotes total or near-total loss of liberty.  The juxtaposition of "imprisoned" with "detained" suggests that a "detention" requires significant deprivation of liberty.  Similarly, the words "arrest or detention"  in s. 10 suggest that a "detention" exists when the deprivation of liberty may have legal consequences.  This linguistic context requires exclusion of police stops where the subject's rights are not seriously in issue.

 

 

 

 

 

[30]                          Moving on from the fundamental principle of the right to choose, we find that psychological constraint amounting to detention has been recognized in two situations. The first is where the subject is legally required to comply with a direction or demand, as in the case of a roadside breath sample. The second is where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject's position would feel so obligated. The rationale for this second form of psychological detention was explained by Le Dain J. in Therens as follows:

 

 

 

In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. …

 

 

 

 

 

[31]                          This second form of psychological detention — where no legal compulsion exists — has proven difficult to define consistently.  The question is whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand. As held in Therens, this must be determined objectively, having regard to all the circumstances of the particular situation, including the conduct of the police.  As discussed in more detail below and summarized at para. 44, the focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.

 

 

 

[32]                           The objective nature of this inquiry recognizes that the police must be able to know when a detention occurs, in order to allow them to fulfill their attendant obligations under the Charter and afford the individual its added protections.  However, the subjective intentions of the police are not determinative. (Questions such as police "good faith" may become relevant when the test for exclusion of evidence under s. 24(2) is applied, in cases where a Charter breach is found.) While the test is objective, the individual's particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceived power imbalance between the individual and the police, and thus the reasonableness of any perception that he or she had no choice but to comply with the police directive.  To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements. In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go.  It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed between police conduct that respects liberty and the individual's right to choose, and conduct that does not.

 

 

…

 

 

[67]                          The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice.  The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried.  More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.

 

 

 

[68]                          The phrase "bring the administration of justice into disrepute" must be understood in the long‑term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism.  But s. 24(2) does not focus on immediate reaction to the individual case.  Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence.  The inquiry is objective.  It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. 

 

 

 

[69]                          Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice.  Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. 

 

 

 

[70]                          Finally, s. 24(2)'s focus is societal.  Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

 

 

 

 

 

[71]                          A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective.  When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.  The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.  These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.