The admissibility consequences of a breach of rights: R v Zacharias, 2023 SCC 30

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.

When is there no robbery?

There are times when the Court of Appeal allows an appeal against conviction but the prosecutor thinks that a mistake of law was made by that Court. If the prosecutor has no right of appeal from that decision, as is usually the case, it would be unsatisfactory if the Court of Appeal’s supposed error were to become a precedent. To meet that, while preserving the result of the appeal that had favoured the defendant (appellant), the Solicitor-General may seek the leave of the Supreme Court to refer a question of law for the decision of that Court.

This happened, leave was granted, and the question of law was answered in Solicitor-General’s Reference (No 1 of 2023) [2023] NZSC 151. The result was that the Solicitor-General’s argument, that the Court of Appeal had made a mistake, was accepted by the Supreme Court.

At its most general, this decision illustrates how both the law and the facts must be considered when determining whether an acquittal for one offence prevents conviction for another [56].

More specifically, the acquittal at jury trial of one person on a charge of robbery by violence did not prevent conviction of another person in the same incident for robbery committed together with that acquitted person. These are different charges: using violence in the course of robbery, and being together with another person and committing robbery. The legislation is set out at [57] of the judgment.

The circumstances of the first person’s acquittal at jury trial were important. Juries do not give reasons for their verdicts, so in the circumstances here the acquittal could have been because use of violence was not proved [61]. Indeed, the defendant at this trial had given evidence that he did not use violence, and this could have been consistent with what a prosecution eyewitness had said [29]-[30]. If that was the reason for the acquittal, there could still have been a robbery, just not one of the kind alleged.

The second person, whose conviction was quashed by the Court of Appeal (and without ordering a retrial because the sentence had been served), had earlier pleaded guilty to the robbery in the “together with” form. Despite his plea, he appealed the conviction. Appeals against conviction after guilty plea are only allowed if maintaining the conviction could amount to a miscarriage of justice [39], [45]-[46].

The Supreme Court held that the Court of Appeal had been wrong to allow the appeal here. The Court of Appeal had thought that the acquittal of the first defendant meant that there had been no robbery [33]-[34], so the second defendant could not have committed a robbery together with that person. The Supreme Court pointed out that two different kinds of robbery were alleged, and that the acquittal of the first person at trial had no effect on the second person’s conviction arising from the plea of guilty.

This was not a controversial result. Counsel appointed to assist the Court [8], was in agreement with counsel for the Solicitor-General [35]-[36]. As the Court emphasised [1], [63], the result did not affect the quashing of the conviction by the Court of Appeal.

Just about everyone was happy.