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CHARTER FALLOUT MISJUDGED
August 5, 2009
by Wallace G. Craig
ACCORDING to tradition, Themis, goddess of justice,
had the ability to foresee events.
Sadly, few judges have the ability to see the future consequences of their
jurisprudence.
The Canadian Charter of Rights and Freedoms was proclaimed in force April
17, 1982. A torrent of Charter decisions soon reached the Supreme Court
of Canada and the Court began fleshing out Charter jurisprudence with
decisions emphasising the significance of the Legal Rights sections including
a criminal's right to counsel, a right against unreasonable search, and
a right to remain silent. Ostensibly, these existed to safeguard innocent,
law abiding citizens from the same encroachments.
This actualization of individual legal rights soon turned a reasonably
effective criminal justice system into a happy-hunting ground for defendants
and their charter-sharp lawyers.
When the common law was supplanted by the Charter, truth took a backseat
to rights, and trials of criminals morphed into trials focussed on the
way police had investigated suspects.
With her acumen, Themis would have warned the Court that a mishmash of
decisions making the rights of criminals paramount would have a sclerotic
effect on criminal justice, followed by erosion of the public's confidence
in the judiciary.
In a quartet of judgments released on July 17, the Supreme Court of Canada
revisited two important and contentious areas of Charter jurisprudence:
the definition of "detention," and the test for exclusion of
evidence tainted by a Charter violation.
This rare act of judicial introspection was fated by four separate appeals:
R. v. Grant, R. v. Suberu, R. v. Harrison, and R v. Shepherd. The cases
demonstrated that existing case law was difficult to apply and could lead
to "unsatisfactory results." Buried in the middle of the decision
in R. v. Grant is an explanation by the majority of the Court of such
"unsatisfactory results" as they relate to Section 24 of the
Charter (which deals with evidence obtained in a way that infringes on
an individual's rights)."The greatest difficulty is … physical
evidence discovered as a result of an unlawfully obtained statement. The
cases refer to this evidence as derivative evidence (a handgun) …at
issue in this case.
"The common law's automatic exclusion of involuntary statements (was)
based on a sense that it is unfair to conscript a person against himself
and, most importantly, on a concern about the unreliability of compelled
statements. However, the common law drew the line of automatic inadmissibility
at the statements themselves and not the physical or "real"
evidence (a handgun) found as a result of information garnered from such
statements. The public interest in getting at the truth through reliable
evidence was seen to outweigh concerns related to self-incrimination.
"Section 24 (2) of the Charter implicitly overruled the common law
practice of always admitting reliable derivative evidence. Instead, the
judge is required to consider whether admission of derivative evidence
obtained through a charter breach would bring the administration of justice
into disrepute."
When I look back on 20 years of judicial experience with the Charter I
realize that wherever a charter violation was established, derivative
evidence was almost invariably excluded. It was horse-and-carriage reasoning:
that you can't have one without the other.
In R. v. Grant the Court has rearranged existing criteria to be considered
by trial judges in deciding whether derivative physical evidence obtained
in the course of an unlawful arrest/detention should be excluded. But
the Court has not grounded its rearrangement of the criteria on the public's
perception that too-frequent exclusion of derivative evidence has already
brought disrepute and disrespect to the criminal law and the criminal
justice system. Justice Deschamps delivered partially concurring reasons
including his observation that the new test proposed by the majority was
problematic and inconsistent. Deschamps proposed that trial judges consider
only two disparate and competing objectives: the public interest in protecting
Charter rights and the public interest in having all criminal cases tried
on their merits, saying that "it is by striking a fair balance between
these two societal interests that this result will be attained."
Deschamps emphasised the importance of the public interest in having
cases tried on their merits; that exclusion of reliable evidence without
good reason is an abdication of the institutional role of the courts;
and that "the importance of the factor of the seriousness of the
offence must be recognized, given society's strong interest in being protected
from the commission of serious crimes."
The Court seems finally to have realized that continuation of exclusionary
rulings involving derivative evidence will sweep away the last vestiges
of faith that Canadians once had in our system of criminal justice.
There was a time when the essence of our criminal law was its public nature;
a time when it was the particular responsibility of police, prosecutors,
and judges to enforce it fairly and impartially; a time when we had peace
and order in our communities.
It was a solemn constitutional trust responsibly carried out on behalf
of law abiding Canadians.
It is no more.
Wallace G. Craig is a retired criminal court judge and the vice-chairman
of the Canadian Justice Review Board
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