To what extent are rights a shield for offending?
Does a breach of the right not to be arbitrarily detained have admissibility consequences in relation to subsequent police activity such as search, arrest, further search, and further detention? Is the propriety of these subsequent events tainted by the initial breach?
In R v Zacharias, 2023 SCC 30 the majority held, 4-1, that the need to consider “all the circumstances” (s 24(2) of the Charter) means that the subsequent events can be (what I call) tainted by the initial breach. However, the majority on this point split 2-2 on the application of this to the circumstances of the case under appeal. The result therefore turned on the decision of Côte J, who, although differing from her 4 colleagues on the taint question, agreed with Rowe and O’Bonsawin JJ on the application of the balancing test to determine admissibility. The appeal was accordingly dismissed, as the evidence had been correctly admitted at trial. Martin and Kasirer JJ dissented in the application of the balancing test and would have allowed the appeal.
The facts are summarised at [4]-[10]. The impropriety of official misconduct is described at [11]-[12], being in essence that the police officer only just failed to have the necessary grounds to detain (breaching s 9 of the Charter) and search (s 8), by way of sniffer dog, Mr Zacharias.
To appreciate the novelty of Zacharias in Canadian Charter jurisprudence, [1] it is useful to study the judgment of Côte J. Put starkly [102], it was the discovery of incriminating evidence that was the basis for all the police conduct after the improper detention, not the detention itself: “an arrest made on the basis of clear and reliable evidence of a crime is not “misconduct” from which the court should be concerned to dissociate itself.” She points out that in none of the Court’s jurisprudence has subsequent official conduct, not itself involving any further breach of rights, been taken into account when weighing the seriousness of the misconduct [78], [87], [97], [100].
Given the majority decision that a breach has relevance to police conduct after the discovery of incriminating evidence, the question becomes one of what is this relevance. While agreeing that the consequences of the breach are relevant to the issue of the impact of the breach on the defendant, Martin and Kasirer JJ gave this more weight in the admissibility determination because of rule of law concerns [109], [138]-[139], [143]-[151] (compare Rowe and O’Bonsawin JJ [70]-[73], with whom Côte J agreed [104]).
In New Zealand the legislation leaves less (or no) room for a moral decision on this issue, and the cases apply an attenuation analysis. [2]
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[1] I have previously referred here to some of the cases cited in Zacharias: Tim on 22 April 2022, Grant on 18 July 2009 and 19 July 2009 and 27 October 2011, and see also 11 November 2020, McColman 25 March 2023, Chehil and MacKenzie both on 3 October 2013, Stairs 13 April 2022, Kang-Brown on 28 April 2008, and A.M. also on 28 April 2008 .
[2] Evidence Act 2006, s 30, in which the references to consequence in subsection (5) and the use of the verb obtained are taken to invoke a causal analysis, although there are occasions where a more contextual analysis is used. Generally, see R v Shaheed [2002] 2 NZLR 377 at [10], [11], [180], [205], R v Pou [2002] 3 NZLR 637, R v Williams [2007] NZCA 52 at [79]-[103], [243], R v Rangihuna [2008] NZCA 230, R v Hsu [2008] NZCA 468, R v Rimine [2010] NZCA 462, Nicol v R [2017] NZCA 140, R v Bailey [2017] NZCA 211, R v Alsford [2017] NZSC 42 , Moore v R [2017] NZCA 577.
