Saturday, July 18, 2009

A new look at s 24(2) Canadian Charter

Some people can engage in three-dimensional balancing without mentioning the electrodynamics of moving bodies. They are the Supreme Court of Canada in R v Grant [2009] SCC 32 (17 July 2009).

My sarcasm should not be seen as radical disagreement. The Supreme Court has tidied up the reference to trial fairness that had clouded the decision on whether to exclude evidence that had been obtained in breach of a Charter right. This clouding arose from common law elaboration of s 24(2):

"(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 Court declined to follow its decisions in R v Collins, 1987 CanLII 84 (S.C.C.), [1987] 1 S.C.R. 265; and R v Stillman, 1997 CanLII 384 (S.C.C.), [1997] 1 S.C.R. 607.

There is now to be a three-armed balancing exercise (gulp). These are: (1) the seriousness of the Charter-infringing State conduct, (2) the impact of that on the Charter-protected interests of the accused, and (3) society's interests in the adjudication of the case on its merits.

All members of the Court agreed in the result of the appeal. Deschamps J did, I suggest, propose a more rational balancing exercise. This requires two things to be balanced against each other. Doing that is at least a more manageable two-dimensional exercise. The two dimensions are: (1) the public interest in protecting Charter rights, and (2) the public interest in an adjudication on the merits.

The majority's arms (1) and (2) are able to be accommodated on one arm of the balance. That is what we do in New Zealand. The Grant factors amount to the same considerations treated in what will probably be recognised as the same way.

Few would dispute the result in Grant. The accused had been in possession of a firearm (a revolver, carried in a waist pouch) near a school. He also had some marijuana. It seems that he was only charged with five firearms offences. The most serious of those involved the element of trafficking, which was also discussed in this appeal. It was held, unanimously, that the circumstances did not amount to possession of the firearm for trafficking (transfer to another person), and the appeal against conviction for that offence was allowed. The other convictions were upheld.

The decisive factor is the proximity of the armed accused, at the relevant time, to a school. That made the public interest in adjudication on the merits outweigh the factors on which the accused relied: his arbitrary detention, breach of his right to counsel, and unreasonable bodily search. Those breaches arose from absence of adequate grounds, but the police had acted in good faith, and the accused was not subjected to gratuitous unpleasantness.

The meaning of "bring the the administration of justice into disrepute" was elaborated (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."

The approach to derivative evidence was also clarified. Difficulties with this sort of evidence arise when there is some attenuation of the breach of the accused's rights: when does the breach no longer outweigh public interests in admission of the evidence?

Inevitability of discovery of the evidence is no longer determinative (121).

"[122] Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused's underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry."

That analysis overlooks the temporal and contextual approach in R v Wittwer [2008] SCC 33 (noted here 6 June 2008), a case not cited in Grant.

The treatment of the right to a fair trial is rather superficial: no attempt is made to develop its meaning. Instead (65):

" ...It is difficult to reconcile trial fairness as a multifaceted and contextual concept with a near-automatic presumption that admission of a broad class of evidence will render a trial unfair, regardless of the circumstances in which it was obtained. In our view, trial fairness is better conceived as an overarching systemic goal than as a distinct stage of the s. 24(2) analysis."

Grant, in rejecting the relevance of trial fairness as a balancing factor, is consistent with the recognition of the right to a fair trial as an absolute right. However, given its absolute nature, something more precise could have been said about it. (Here is my effort to draw a tree based on the Grant approach.)

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