Canadian Criminal Procedure and Practice/Exclusion of Evidence

General Principles Where there has been a finding of a breach of any right under the Charter, the applicant may apply to have evidence excluded from the trial under s. 24(2) of the Charter which states: Exclusion of evidence bringing administration of justice into disrepute (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. The Supreme Court of Canada made a complete revision of the analytical approach in R. v. Grant, 2009 SCC 32R. v. Grant, 2009 SCC 32 . Under Grant, there are "three avenues of inquiry" that a court must consider:R v Grant per McLachlin, C.J. and Charron, J., at para. 71 ...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... In balancing these factors, the judge should consider all the circumstances of the case.See R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253 R. v. Côté, 2011 SCC 46 (CanLII), [2011] 3 S.C.R. 215, at para. 45-48 This analysis should focus on the "long-term, prospective and societal" effect of the violations.see R. v. Mahmood, 2011 ONCA 693 (CanLII) R. v. Dhillon, [2012] B.C.J. No. 1158 (C.A.), at para 78 Grant at para. 69 and 70 The analysis should be from an objective view and ask "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" Grant at para. 68 There is no rule requiring the automatic exclusion of a statement obtained by Charter violations.R. v. N.Y., 2012 ONCA 745 (CanLII) at para. 56, 57 A appellate court should give a discretionary decision of a judge, such as in a 24(2) analysis, high deference. The judge should only interfere where "the judge did not give weight to all relevant considerations". R. v. Bacon, 2012 BCCA 323 at para. 14 2 Seriousness of police misconduct This factor considers the effect of the police misconduct on the reputation of the justice system. Effectively, considering whether the courts are "condoning" the deviation from the rule of law by failing to disassociate themselves from the fruits of the misconduct.R. v. Ngai, [2010] A.J. No. 96 (C.A.), ("court's first stage of inquiry requires it to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by failing to disassociate themselves from the fruit of that unlawful conduct." ) However, an over-readiness to exclude for "fleeting and technical violation[s]" is likely "to be seen as symptom of systemic impotency which would breed public contempt for the criminal justice system"see R. v. Shinkewski, [2012] S.J. No. 376 (C.A.), at para 33 R. v. Giulioni, [2011] N.J. No. 322 (S.C.) R. v. Hart, 2012 NLCA 61 Factors the court must consider include: R. v. Loewen 2010 ABCA 255 at para. 83 Was the breach “inadvertent or minor” or a result of willful or reckless or deliberate disregard for the Charter? Did the police act in good faith? Were there “extenuating circumstances”? The gravity of the conduct depends on the degree of intention of the officer, ranging from inadvertent or minor violations to wilful or reckless disregard for Charter rights.R. v. Grant at para. 74 Flagrant disregard of Charter right are to be treated differently than breaches arising out of conduct that is in accordance with the law.see R. v. Beaulieu, 2010 SCC 7 (CanLII), [2010] 1 S.C.R. 248 R. v. Loewen, [2011] S.C.J. No. 100) The Court should consider "what the police did and their attitude when they did it".see R. v. Ramage, 2010 ONCA 488 (CanLII), at para 48 The presence of ignored lesser intrusive options to chosen the method of investigation will have an aggravating effect on the seriousness of the Charter breach.R v Brown, 2012 ONCA 225 (CanLII) A "cavalier" attitude to the use of police powers will also aggravate the breach.R v Brown, 2012 ONCA 225 (CanLII) Whether the conduct was an isolated incident or part of a larger pattern of police disregard of Charter rights will affect the seriousness of the breach. R. v. Greffe, 1990 CanLII 143 (SCC), [1990] 1 S.C.R. 755, at para. 50 This can usually come out through voir dire evidence of whether the officer was acting on an established practice. The seriousness can be mitigated by factors such as "good faith" on the part of the officer or extenuating circumstances that may warrant quick action to avoid losing evidence.R. v. Silveira, 1995 CanLII 89 (S.C.C.), [1995] 2 S.C.R. 297 Good faith, if established, will favour admission because it will "reduce the need for the court to disassociate itself from police conduct".R. v. Grant, at para. 75 The presence of reasonable and probable grounds for the police conduct will lessen the seriousness of the violation.R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341 Entry into a residence with an invalid warrant or without any warrant is considered a serious violation of the accused's rights and tends to lean towards exclusion.R. v. Maton, 2005 BCSC 330 (CanLII) at para. 56-64 2 Impact on personal interests The impact on the personal interests is a two part inquiry. First, the interest engaged must identified, and then the degree to which the violation impacted this interest must be considered. The impact can range from fleeting and technical to profoundly intrusive.R v Grant, supra Being stopped and searched without justification impacts liberty and privacy in more than a trivial manner. R v Harrison, 2009 SCC 34 at para. 31 "being stopped and subjected to a search by the police without justification impacts on the motorist's rightful expectation of liberty and privacy in a way that is much more than trivial.”) Stopping a vehicle creates a lesser impact on personal interests than a search of a residence.see R. v. Bacon, [2012] B.C.J. No. 1571 (C.A.), at para 34 R. v. Loewen, [2011] S.C.J. No. 100, at para 12 and 13 R v Harrison, [2009] 2 S.C.R. 494 at para 31 The older test under Collins placed emphasis on the discoverability of the evidence, inquiring whether the evidence would have been otherwise discovered during the investigation. Under the new model, the discoverability is still relevant to the first two branches of the analysis but less crucial to the analysis.R. v. Côté, [2011] S.C.J. 46 at 70 In the context of an roadside screening demand, it has been said that only the breaching event is to be considered in determining the impact on personal interests. The judge should not consider the events that follow including the subsequent arrest, personal consequences, or employment consequences.R v. Booth, 2010 ABQB 797 The "more likely that the evidence would have been obtained even without [the impugned statement of the accused] the lesser the impact of the breach on the accused’s underlying interest against self-incrimination". R. v. Grant, 2009 SCC 32 at 122 2 Interest in Trying Case on Merits The third step considers the "truth-seeking function" of the trial process.R v GrantIt is presumed that society has an interest in adjudicating matters on the merits. A balance must be made between the effect of its exclusion to the effect of its inclusion. The "reliability" of the evidence is an important inquiry. If the breach brings the reliability into question it will favour exclusion.R. v. Grant at para. 83 R. v. Atkinson, [2012] O.J. No. 2520 (C.A.), at para 93 The importance of the evidence on the Crown's case is also important. R. v. Grant at para. 83 Where the exclusion would effectively "gut" the case, it will be a factor in favour of admission.see R. v. MacDonald, [2012] O.J. No. 3210 (C.A.), at para 37 The seriousness of the offence has some importance,R. v. Reddy, 2010 BCCA 11 (CanLII), at para 94 R. v. Stevens, 2011 ONCA 504 (CanLII), at para 62 but can "cut both ways".R. v. Grant at para. 84 The importance of the short-term desire to convict for serious offences is balanced against the need for fair conduct where the penalty is so great. There will be cases where the seriousness of the offence is considered "neutral".see R. v. Martin, [2010] N.B.J. No. 198 (C.A.), at para 96 2 Interests for specific offences Motor Vehicle Offences Cases have addressed society's interest screening of impaired drivers to reduce the carnage on our highways prefers the inclusion of evidence.see R. v. Elias; R. v. Orbanski 2005 SCC 37, (2005), 196 C.C.C. (3d) 481 (S.C.C.) at paras. 3, 24-27; 49; 55 and 58 The ASD procedure has been described as a "non-invasive" and "does not undermine bodily integrity or dignity".R. v. Vandenberg 2010 ABQB 261 2 Weapons Offences In consideration under s.24(2) of the Charter, courts have commented on the public interest with respect to gun cases: See R v Campbell [2009] OJ 4132 Offences involving handguns is a “serious and growing societal danger”.R v Clayton 2005 CaLII 16569 (ONCA) at 41 There is a strong emphasis on the need to denounce and deter the use of firearms in public places. R v Danvers [2005] OJ 3532 ONCA at 77R. v. Bellamy,2008 CanLII 26259 (ON SC), [2008] 175 C.R.R. (2d) 241, at para. 76R. v. Brown, [2006] O.J. No. 4681 (Ont. S.C.J.) at para. 9 There has been judicial notice that as of 2007 there has been a national increase in gun violence and gun-related offences.R v. Clayton 2007 SCC 32 at 110 It has been said that "the exclusion of firearms would more negatively impact the administration of justice than their admission." R. v. Mpamugo, [2009] O.J. No. 953 (S.C.), at para. 48 R v Harrison, 2009 SCC 34 at 82 2 Pre-Grant Analysis Collins/Stillman Analysis Under the Collins test, the administration of justice is brought into "disrepute" where a combination of three factors weight in favour of exclusion of evidence. These sets of factors consist of:R. v. Collins [1987] 1 S.C.R. 265 factors affecting the fairness of the trial, factors relevant to the seriousness of the violation; and factors relevant to the effect of excluding the evidence. The Stillman test considers the first set of factors. It examines the nature of the evidence and alternatives to its discovery.R. v. Stillman [1997] 1 S.C.R. 607, 1997 SCC 32 The Stillman test directs the following analysis: Classify the evidence as conscriptive or non-conscriptive based on the manner in which the evidence was obtained. If the evidence is non-conscriptive, its admission will not render the trial unfair and the Court will proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of justice. If the evidence is conscriptive and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative non-conscriptive means, then its admission will render the trial unfair. The Court, as a general rule, will exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice. This must be the result since an unfair trial would necessarily bring the administration of justice into disrepute. If the evidence is found to be conscriptive and the Crown demonstrates on a balance of probabilities that it would have been discovered by alternative non-conscriptive means, then its admission will generally not render the trial unfair. However, the seriousness of the Charter breach and the effect of exclusion on the repute of the administration of justice will have to be considered. 2 Conscriptive Evidence Evidence that is conscriptive is a factor against the admission of evidence obtained by a Charter violation. Conscriptive evidence affects the trial fairness factor. Conscriptive evidence is evidence that arises from any of the following:Watt, Manual of Criminal Evidence at 41.03 Stillman - lists the first three factors statements use of the accused's body taking of bodily sample evidence derived from the above (derivative evidence) Evidence that is conscriptive and not otherwise discoverable will tend to be excluded. A voluntary statement cannot be conscriptive.Watt at 41.03 Conscriptiveness must be proven by the Accused on a balance of probabilities. Discoverable evidence is evidence that 1) can be proven by other non-conscriptive means or 2) would inevitably be discovered.Stillman Discoverability must be proven by the Crown on a balance of probabilities. 2 Relevant Charter Rights Rights against Search and Seizure Right to Counsel Right against Arbitrary Detention