3. Remedies for Rights Violations and Evidence Exclusion Rules

Throughout the course we have seen that rights, particularly the rights of the defendant, are crucial to the criminal justice system. However, one underlying question is what should be done in case of breaches of such rights? In other words, how much do we care and how far is the criminal justice system willing to go in remedying breaches? Note that rights would not be much if they did not lead to remedies. At the same time, for example, ordering a stay of proceedings at every minor right violation would unduly impede the operation of the criminal justice system and hinder its goals. Note that there has sometimes been frustration in the media and the population about the granting of certain remedies and occasionally a feeling that they hinder the fight against crime.

Still, providing remedies to rights violations is both an international and a Charter obligation. Section 24 plays a central role here. Note that violations potentially occupy a wide spectrum. Among the most evident are violations at the investigation level by the police, but there could also be violations by the Crown, for example in terms of disclosure, or a remedy for a much more structural failure as in the case of undue delays. Providing remedies to victims is also a way of 'disciplining' the powers that be and making sure that in the future they behave adequately. Remedies are therefore not just for the benefit of a particular victim, but also for the entire system.

There has been a steady evolution of thinking about remedies over the last decades. In the United States,  the exclusionary rule tends to apply more strictly. Impeccable police work is required in order for evidence to be considered admissible. This, according to research, is known to have a marked deterrent effect over police excesses. Canadian society – a country marked by no revolution by its people against oppressive aristocratic rule, unlike its Southern neighbor – has historically had a more lenient approach to exclusionary rules. Until the adoption of the Charter, the emphasis seemed to be on the discovery of the truth. That is, evidence, no matter its origin, was considered admissible based on reliability. Save for a few exceptions, this general tolerance for police behaviour in obtaining evidence was tacitly understood as an endorsement of the primacy of society’s right to truth. The defendant was guaranteed a fair trial before the judge ascertaining guilt or innocence with as much rigour as possible – not the full respect of his or her individual rights “outside the courtroom.”

With a change in popular attitudes, as well as the adoption of the Charter, this state of affairs changed dramatically. Section 24(2) of the Charter now  demands that evidence 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.” Such are the demands of Charter Section 24(2). For some time, imitating their Southern neighbours to a certain extent, Canadian tribunals tended to equate many violations of the defendant’s individual rights with the “bringing of the administration of justice into disrepute,” demanding the exclusion of evidence thus obtained.

This is where the Grant case is relevant. In this 2009 decision, the Supreme Court of Canada decided to adjust some of the criteria set out in its (voluminous) preceding case law on exclusionary rules. One of the principal criteria highlighted in this decision, beyond the inherent vagueness left by existing standards, is the fact that “bringing the administration of justice into disrepute” and violating the defendant’s individual rights constitute two distinct scenarios: a violation of the defendant’s individual rights does not automatically amount to bringing the administration of justice into disrepute. While partly overlapping, these two scenarios target two different sets of needs and interests. In both cases, however, the violation at hand must show a certain measure of gravity. The court notes that, as is indeed the case in most proceedings, certain imperfections can plague the process, and that the defendant’s right to fair trial should not be understood as a right to a flawless process (the Bjelland case notes that “a fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused”).

In the Grant case the court determined that the individual in question had effectively been put under detention without being duly informed of his right against self-incrimination. Had the applicable procedure been observed, one may think that he would have preferred to remain silent and not incriminate himself. It was argued that evidence acquired in such a way had to be excluded because its admission would “bring the administration of justice into disrepute” pursuant to Charter Section 24(2). In its analysis, the court rightly notes that the language of Section 24(1) and (2) points to two remedial scenarios. Under the first sub-section, the individual is entitled to a remedy if his or her rights have been violated. Under the second sub-section, the individual may ask for the exclusion of evidence where the administration of justice may be brought into disrepute. One is fundamentally private and the other fundamentally public. Importantly, one may ask for a remedy where one's rights are violated without the situation amounting to a shocking miscarriage of justice. In many situations where simple remedies are available, this will be the preferred option (in some cases, for example, more time may be accorded to defense, where evidence is for instance communicated belatedly as in the Bjelland case).

Bringing the justice system into disrepute is an onerous threshold. It is based on 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. In light of the preceding one may thing that the news must shock public opinion in such a way that perceptions akin to “police abuse” or “bad faith” be exhibited.

Concretely the test proposed demands the weighing of three criteria: (a) the seriousness of the Charter-infringing state conduct – a criterion comparable to a civil fault requirement, assessing the gravity or bad faith involved in police conduct, namely taking into account existing patterns of abuse; (b) the impact on the Charter-protected interests of the accused – a criterion comparable to a civil prejudice requirement, assessing how strongly the evidence thusly gathered infringes on fundamental rights ; (c) society’s interest in adjudication on the merits – a criterion assessing the strength of the evidence thusly obtained in proving the accused person’s guilt (weak or unreliable evidence will be dismissed more readily).

In Grant the Court found the requirement of the first criterion to be fairly low , as the legal contours of detention in and of themselves were difficult to ascertain at the time of the events. The court notes that the incident does not seem to denote any bad faith, and should be closer to a simple error in a confusing situation. This weighs against exclusion. The second criterion, on the other hand, was deemed fairly high as the defendant’s right against self-incrimination, a cornerstone of the criminal justice system, is clearly violated. This weighed strongly in favour of exclusion. The third criterion was satisfied as the evidence obtained clearly demonstrated the individual’s guilt. This weighed strongly against exclusion, given the public’s interest in punishing those otherwise known to be delinquents.

The court specified that each case must be determined on a case by case basis, and that a considerable degree of discretion must consequently be left to the trial judge. On the whole, the court found that this case was a borderline case, and decided to draw the line in favour of the state, accepting the admission of evidence obtained in stark violation of the individual’s Charter-protected rights.

One may criticize this decision for potentially condoning abusive police work – protecting abusive behaviour so long as results are conclusive. A strict approach to exclusionary rules is known to deter police abuse, and public outrage sparked by what may appear to be 'technicalities' is often produced by poor of knowledge or the issues. Members of the public tend to accept the legitimacy of the exclusionary rule once introduced to its rationale. On the one hand, one may criticize this test for again leaving a broad margin of discretion to judges in deciding to tolerate breaches in order to avoid the unpleasant experience of arousing public discontent. On the other hand, one should recognize that in this case the court seemed to accord much importance to the fact that this mistake was made in good faith in a situation where the legal contours of the principle at hand were difficult to ascertain. The test as laid out would seem to guard against any intrusion explicitly committed in order to obtain evidence illegally. More than a denial of individual rights, this decision recognizes that certain mistakes can be made when acting in good faith. What is more, maintaining public confidence in the administration of justice is a fundamental component necessary for its proper functioning. General alienation from a putatively legalistic system may lead to disrespect for law and order, private justice or vigilantism. Confidence in the administration of justice is necessary for the rule of law.

Other cases demonstrate the otherwise high threshold commanded by Section 24(2). Bjelland, for example, shows that a high number of small to medium irregularities does not suffice where such irregularities may be remedied in part. In this case, the Crown disclosed evidence after the accused person had pled non-guilty and decided to proceed before a judge. Had this evidence been disclosed earlier, it was argued, his decision would have been different. This irregularity was deemed minor in the consequences incurred bythe defendant. It was argued that his right to submit a full defense, as enshrined in Section 7, would have been infringed had he been able to demonstrate an “actual prejudice to [his or her] ability to make full answer and defence.” At this early stage – before proceedings on the merits had commenced – it was decided that there was no real violation: “at base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view.” The appellant also argued that his right to a fair trial was prejudiced because he was denied the right to cross-examine two testimonies at a preliminary hearing. Cross-examining a witness at a preliminary hearing, it was held, is not a component of the right to make full answer and defence. Indeed, testimonies may be interrogated at a later stage. While such late disclosure may hinder certain arguments from surfacing in the defense’s overall strategy, the gist of the trial, with its discovery of the truth, generally remains acceptable in terms of fairness.

The Grant case also illustrates this point. A teacher was found to have stored pictures of a nude student on his school-owned laptop. This was discovered during regular maintenance by a technician and directly forwarded to authorities, which took possession of the laptop to examine it. The court noted that this was a violation of the defendant’s right to privacy in that the computer, while owned by the school, contained highly personal material.  It was argued that the evidence found on this computer should consequently be excluded. The court applied the Grant case and concluded that the evidence was obtained in good faith, believing that there was no violation of privacy due to the fact that the computer belonged to the school. The court also noted that the evidence, like in the Grant case, clearly demonstrated the commission of the crime in question. For these reasons, the court admitted the evidence. The notion of an error committed in good faith appears central here again.

The Brown case illustrates where the line may be drawn when it comes to exclusion. In this case an officer arrested an individual based on his subjective perception of a subtle bodily movement between two individuals implicitly revealing a “hand to hand drug exchange.” The police officer’s partner also saw the events and did not find them suspicious. The officer decided to arrest the individual directly in the middle of a busy street intersection. The court noted that the determination made by the officer was not objectively justifiable, in part relying on the fact that his partner did not perceive the events in the same way. The court highlighted that the determination must be objective so as to prevent events such as this one, based on subjective intuitions potentially leading to abuse (Section 495 Cr. C). The court also noted that the officer testified to the effect that he was used to arresting individuals for a short period of time without detaining or interrogating them before, and that he seemed to find no prejudice in arresting individuals and releasing them shortly after. The court noted that this practice was prejudicial, and seemed to find a certain measure of negligence or bad faith in the officer’s behaviour. For these reasons, it concluded that the evidence obtained merited exclusion based on Section 24(2).

Finally, the Ward decision illustrates the application of Section 24(1), which centers on remedies as opposed to the exclusion of evidence. The test here is similar to 1454 CCQ in that a fault and a damage must be evidenced. In this case the Vancouver police had erroneously sought to arrest an individual during a public event, which had caused him to react strongly, and which in turn had caused the police to search his car and to detain him for 4,5 hours. For the bodily search, which was carried out in public during the event – a degrading practice – the court granted 5000$. For the car search, which was less prejudicial, the court granted a few hundred dollars. Both searches were found to be in clear violation of the individual’s rights.

Class preparation:

  • Eileen Skinnider, ILLEGALLY OBTAINED EVIDENCE: THE EXCLUSIONARY EVIDENCE RULE IN CANADAInternational Centre for Criminal Law Reform and Criminal Justice Policy, December 2005 (26 pages)
  • R. v. Grant, 2009 SCC 32,  [2009] 2 S.C.R. 353 (headnote only, focus on parts on exclusion)
  • R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651 (majority judgment only)