In R v McColman, 2023 SCC 8 the Supreme Court of Canada unanimously delivered a clear explanation of the way the admissibility of evidence obtained in breach of Charter rights is to be decided in Canada.
The context here was an alcohol-related driving offence, evidence of which was wrongfully obtained when the officials entered on private property where the defendant had parked the vehicle.
The lawfulness of the officials’ conduct had been the subject of differing judicial opinions and the law was not settled at the time of these events, but in this case the Court of Appeal and the Supreme Court held that the conduct was unlawful, that is, the entry onto private property was unlawful, and the consequent detention of the defendant arbitrary in terms of the Charter.
The admissibility determination involved application of the approach the Court had set out in Grant, 2009 SCC 32. It involves three “lines of inquiry” as they are now called.[1] In looking at these, one can ask whether there is some degree of over-structuring of the decision process, and whether it is appropriate to apply the decision criterion (the avoidance of bringing the law into disrepute) to each of the three lines of inquiry separately.
The first line of inquiry, described at [57], places attention on the official misconduct. A point mentioned at [58] is the relevance of there having been an alternative lawful means of obtaining the evidence. This is further explained at [64], where it is said that the existence of such alternative lawful means is an extenuating circumstance, reducing the wrongfulness of the officials’ misconduct.
That, I suggest, is a highly controversial approach. One would have thought that the fact that the officials could have acted lawfully only emphasises the wrongfulness of their not having acted lawfully.[2]
The conclusion on the first line of inquiry, at [65], was that the impropriety “pulls slightly in favour of exclusion.” The metaphor now seems not to be balancing, but something like a tug-of-war. This assessment as “slightly” favouring exclusion takes the strength out of the improprieties described at [63] (not having grounds to enter the property, and not proceeding cautiously[3] in view of the uncertainty of the law at that time). It may be that premature application of the ultimate decision criterion to the first factor, at [58], has reduced the power of the pull towards exclusion of the second factor.[4]
The second factor is the impact of the improprieties on the defendant’s Charter rights, namely his right to liberty. This line of inquiry favoured exclusion of the evidence, but “moderately” (at [68]). In view of the impact described in that paragraph, the description “moderate” could seem to some readers to be somewhat weak. But in context, the police had only failed to conduct a random stop to apprehend the defendant by a narrow margin, and they arrived at the property about a minute after he had parked there. In this sense, the breach of his Charter rights “only just” occurred.
The Court emphasises the separateness of the first two lines of inquiry from each other [59]. Treating them as distinct (in the interests of avoiding “unstructured analysis” [59]) may cause the lesser to reduce the other. When misconduct is described as “slightly” exclusionary, its impact is likely to be thought of as slight too. But really, here the defendant was on private property when officials wrongfully detained him, without grounds and without observing the need to act with caution (one might think they acted precipitately and carelessly), and obtained all the evidence that would be used against him. In rightly pointing to the relevance of the “cumulative” weight (here we are back with the balancing metaphor) of the first two factors at [59], the separateness of the two lines of inquiry must be questioned.
Thirdly, the so-called truth seeking function of the trial [69],[5] making the seriousness of the offence a relevant factor [70]. Seriousness was a factor not thought to be a useful consideration in Grant, (and see my above-mentioned comment here dated 11 November 2020), because it was apt to “cut both ways”, but in the present case the Court relied on it because the offending jeopardised public safety. This indeed is the most important factor in this case, and the conclusion that the evidence was admissible was undoubtedly correct. Here, seriousness seems to have been treated generically (at [72]), whereas it would be more logical to place attention on the actual offence that was detected: the level of alcohol here obtained from two tests was 120 and 110 mg of alcohol per litre of breath, the legal limit being 80 (at [7]). In the range of offences that are detected, this would most likely be just short of high. The Court was indeed right to conclude that the public interest in the evidence being admitted was high.
However, I can’t leave this without taking a swing at the application of the ultimate decision criterion to the factors individually, here the third factor [70]. It is not “the need for a justice system that is above reproach” that pulls in favour of admission of the evidence, it is the need to bring to trial those who are charged with alcohol related driving offences. Adding avoidance of reproach to that is unnecessary, and it risks over-emphasising the seriousness of the offending (which didn’t need that sort of bolstering, as [72] speaks for itself). The factors should all be evaluated in their own contexts: this intrusion into private property should be compared in seriousness to the range of intrusions that are dealt with by the courts, the unlawful detention should be compared to the range of such detentions,[6] and the seriousness of the offending should be compared to the range of similar offences that the courts encounter. These comparisons yield the descriptions “slightly” and “moderately” for the extent to which there are exclusionary factors, and “serious” for the extent to which admission of the evidence is favoured. Then, to answer the next question, what is the impact of the exclusion factors on the admission factors, the court must exercise its judgement aided by the need to avoid disrepute to the administration of justice from a long-term perspective. The Court here combines these but under different headings at [73]-[74].
To put it simply, the factors favouring exclusion here were the officials acting without grounds (although not deliberately) and unlawfully entering private property and detaining the defendant, when they should have acted with caution, and using that unlawful detention to obtain evidence against him. The factor favouring admission of the evidence was the seriousness of the offending which had potential to endanger public safety. The decision was, I suggest, more finely balanced that the Court seems to think, although it does say “on the whole, considering all of the circumstances, the evidence should not be excluded” [74], which could suggest admission by a narrow margin. So it is just the reasoning, not the result, that can be criticised.
Some questions may be asked, using the pull metaphor adopted in this case:
1. Are the values underlying exclusion the same as the values underlying admission?
2. Do the adjectives “slight”, “moderate”, and “strong” respectively indicate the same magnitude of “pull” for exclusion factors as for admission factors?
3. Is the idea of “avoiding bringing the administration of justice into disrepute” the decision criterion?
4. Is the assessment of the strengths of “pull” for the individual factors a separate exercise from the application of the decision criterion, or does the decision criterion assist in assessing the strength of the “pull” for each factor?
5. Where exclusion and admission factors are both at the lower region of their scales, is exclusion more likely than admission of the evidence?
6. For cases where the exclusion and admission factors are getting towards (but not at) the higher end of their scales, is admission more likely than exclusion?
7. Where exclusion factors are at or near their highest strength, will exclusion be the result irrespective of the strength of the admission factors?
8. For cases where the exclusion factors are in the middle region of their range, is the seriousness of the alleged offence the main determinant of admissibility?
9. Is the seriousness of the alleged offence to be assessed generically, for example by ranking maximum penalties, or is it to be assessed specifically, for example by reference to the likely starting point in this case for sentencing purposes?
10. The first two “lines of inquiry” – the misconduct by officials and the impact of that on the defendant’s rights – are both exclusion factors, so should they continue to be assessed separately, or should they be taken together?
[1] For mention of the various metaphors that have been used, see footnote 1 to my comment here on 11 November 2020. I am not sure what metaphor "lines of inquiry" invokes. Perhaps it is railway lines? In any event, the Court later talks of "pulling" towards exclusion or admission of the evidence, which could be thought of as an appropriate and vivid reference to a tug-of-war.
[2] See Kadir v The Queen [2020] HCA 1, (2020) 267 CLR 109. A fact-specific approach to the relevance of alternative lawful means of obtaining the evidence is supported by the New Zealand Law Commission in The Second Review of the Evidence Act 2006 (NZLC R142, 2019) at [7.40], observing that this will ordinarily favour exclusion of the evidence (at [7.36]).
[3] What being cautious means here is unclear. At [63] the suggestion is that the officers had a duty to act cautiously and to question the limits of their authority. Perhaps this means they should have asked for advice from higher in their chain of command.
[4] If we must use a tug-of-war metaphor, we could say that the strengths of each side determine where the rope’s middle marker ends up, and then the decision criterion is applied: which side of the line is it?
[5] I am critical of the description “truth-seeking” when applied to criminal trials. It may be apt for non-criminal trials, but a criminal trial is a test of the prosecutor’s case and, with a few exceptions where a burden of proof is placed on the defendant, the court does not have to be satisfied of the defendant’s innocence in order to acquit. See also my note here dated July 7, 2022.
[6] For a startling example of wrongful detention in the context of an alleged offence of driving under the influence of alcohol, see Yoganathan v R [2017] NZCA 225. The defendant had received serious injuries at the hands of the police and the conviction was set aside on appeal. This can be compared with Kelly v Police [2017] NZHC 1611 where although the police’s refusal to take the defendant to hospital for treatment for a broken ankle bone was disrespectful and inhumane, the repeat alcohol-related driving offending was serious and the evidence of his alcohol level was admissible.
