Sometimes failure to use lawful means would aggravate the wrongfulness. Other times the lawful alternative would diminish the wrongfulness. When?
The Supreme Court of Canada got to grips with this in R v Côté 2011 SCC 46 (14 October 2011). The context for this sort of decision in Canada is R v Grant 2009 SCC 32, which I had some fun with here on 18 July 2009 for its complex model of how admissibility of improperly obtained evidence is to be decided. Grant was referred to recently by the Supreme Court of New Zealand in Hamed v R, discussed here on 19 September 2011.
So to the vital bit of Côté. The term "discoverability" means the ability to discover the evidence lawfully. Two "branches" of the Grant model have to be addressed: the seriousness of the misconduct, and its impact on the defendant Cromwell J delivering the joint judgment):
"[71] I turn to the first branch of the Grant test which is concerned with the seriousness of the Charter-infringing state conduct. If the police officers could have conducted the search legally but failed to turn their minds to obtaining a warrant or proceeded under the view that they could not have demonstrated to a judicial officer that they had reasonable and probable grounds, the seriousness of the state conduct is heightened. As in Buhay, a casual attitude towards, or a deliberate flouting of, Charter rights will generally aggravate the seriousness of the Charter-infringing state conduct. On the other hand, the facts that the police exhibited good faith and/or had a legitimate reason for not seeking prior judicial authorization of the search will likely lessen the seriousness of the Charter-infringing state conduct.
"[72] We come now to the effect of discoverability on the second branch of the Grant test — the impact on the Charter-protected interests of the accused. Section 8 of the Charter protects an individual's reasonable expectation of privacy. That reasonable expectation of privacy must take account of the fact that searches may occur when a judicial officer is satisfied that there are reasonable and probable grounds and authorizes the search before it is carried out. If the search could not have occurred legally, it is considerably more intrusive of the individual's reasonable expectation of privacy. On the other hand, the fact that the police could have demonstrated to a judicial officer that they had reasonable and probable grounds to believe that an offence had been committed and that there was evidence to be found at the place of the search will tend to lessen the impact of the illegal search on the accused's privacy and dignity interests protected by the Charter."
Nothing controversial there.I still think the Canadian model in Grant is absurdly complex: who can visualise a 3-branch balancing exercise? The third branch is the public interest in admission of the evidence. It would be better to think of the first two as being one "branch", or arm of the balance, with a weight moving one way or the other along it according to the first two considerations.
In Grant the model was called a "decision tree". Draw it for us. I had a go, but couldn't say it would make comparison of cases easy.
