Monday, August 24, 2009

Now we are five

Five years of blogging!

That concludes my ongoing commentary, but I may occasionally add updates to particular entries. To locate these, search this site for "Update"; if the search function isn't working, try the alternative site (link on right).

Monday, August 10, 2009

Disclosure of warnings and diversions

It may be necessary for the prosecution to disclose to the defence information about prosecution witnesses concerning warnings that they have received from the police about their conduct, and about measures alternative to prosecution (eg diversion) that such witnesses have undergone: HM Advocate v Murtagh [2009] UKPC 36 (3 August 2009), para 40(iv).

Such disclosure would be required if, as with any criminal convictions, that information would be material in the sense that it would either undermine the case for the prosecution or assist the case for the defence.

The decision on disclosure is, in current Scottish law, governed by the common law and is a matter for the prosecutor. Cases noted here and mentioned in Murtagh are Holland v HM Advocate (25.5.05), Sinclair v HM Advocate (24.5.07) and McDonald v HM Advocate (21.10.08).

The leading judgment in Murtagh was delivered by Lord Hope, and the only real point of some divergence was on whether it would be preferable for the prosecutor to disclose all the convictions of prosecution witnesses unless those convictions would be both embarrassing and immaterial (Lord Scott 43, Lord Brown 73).

While the common law does not require the prosecution to disclose information about the convictions of witnesses it knows the defence will or may call, Lord Rodger noted (70) that such disclosure would be consistent with equality of arms.

The accused's fair trial right is absolute and is not a matter for balancing against the privacy interests of a third party: Lord Scott (43; there was no disagreement on this). Criminal records held by the authorities can attract privacy interests, especially if they are old, so full disclosure is not an absolute right (Lord Hope at 18, 28). So, although the right to a fair trial is absolute, the right to disclosure is qualified (29).

Material convictions go to the witness's credibility or character (Lord Hope, 30) and a generous interpretation of what might be relevant should be taken, although a threshold applies (31). There are practical problems with the full disclosure approach favoured by Lord Scott and Lord Brown, such as the potential for harassment and other misuse of them by unrepresented defendants (33). There is no requirement of disclosure of the records of defence witnesses (39).

Lord Rodger emphasised the undesirability of redacting lists given to the defence, as that process can be time consuming (59) and can lead to disputes (69). Where disputes do arise, the judge should resolve them (69, and Lord Brown at 73), although Lord Hope saw no need for the disclosure decision to be transferred to some other party (15).

Disclosure of warnings and incidents of diversion from prosecution is not specified in recent legislation in New Zealand, the Criminal Disclosure Act 2008, although it would probably come within s 13(2)(a) which requires disclosure of "any relevant information", and the specified matters do not limit that expression.

Saturday, August 01, 2009

On being informed about decisions to prosecute

There is a right to be told of how decisions about whether or not to prosecute are made: R (Purdy) v Director of Public Prosecutions [2009] UKHL 45 (30 July 2009).

Article 8 of the ECHR provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Appellate Committee ordered the Director to publish a specific policy on decisions to prosecute allegations of assistance in suicide. Here there was a possibility that assistance might be given to a person who wanted to commit suicide lawfully in Switzerland, by helping them leave the United Kingdom for that purpose. The potential assister wanted to know about the likelihood of being prosecuted.

The common law on liability for assisting what would be an offence in the jurisdiction where the assistance is given, but not an offence where the full offence is committed is reasonably clear, although Lord Phillips did not think it was necessarily as settled as did Lord Hope who delivered the leading opinion. Whether that jurisdictional issue was settled or not, the real issue in this case was access to information about decisions to prosecute.

Baroness Hale noted (57 – 58) the recent Parliamentary debates on the issue of assisted suicide, which did not result in legislation. There were drafting difficulties, and indications of a preference to leave the matter to prosecutorial discretion. Since a major objective of the criminal law is to warn people of when they might be punished (59), article 8(2) was engaged (62). Lord Brown said article 8(2) required accessability and foreseeability in assessing how prosecutorial decisions are likely to be exercised (85). Lord Neuberger said the applicant was entitled to guidance on that (106).

Lord Hope pointed to the crucial circumstances that a Code guiding prosecutorial decisions should address (53):

"...There could be [... cases] unsuitable for prosecution where, for example, it could be said that those who offered assistance stood to gain an advantage, financial or otherwise, by the death. An assistant who was not a relative or a family friend might have to be paid, for example, and a relative might derive some benefit under the deceased's will or on intestacy. The issue whether the acts of assistance were undertaken for an improper motive will, of course, be highly relevant. But the mere fact that some benefit might accrue is unlikely, on its own, to be significant."

He concluded:

"54. The Code will normally provide sufficient guidance to Crown Prosecutors and to the public as to how decisions should or are likely to be taken whether or not, in a given case, it will be in the public interest to prosecute. This is a valuable safeguard for the vulnerable, as it enables the prosecutor to take into account the whole background of the case. In most cases its application will ensure predictability and consistency of decision-taking, and people will know where they stand. But that cannot be said of cases where the offence in contemplation is aiding or abetting the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences. There is already an obvious gulf between what section 2(1) [of the Suicide Act 1961[UK]] says ["A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years"] and the way that the subsection is being applied in practice in compassionate cases of that kind.

"55. The cases that have been referred to the Director are few, but they will undoubtedly grow in number. Decisions in this area of the law are, of course, highly sensitive to the facts of each case. They are also likely to be controversial. But I would not regard these as reasons for excusing the Director from the obligation to clarify what his position is as to the factors that he regards as relevant for and against prosecution in this very special and carefully defined class of case. How he goes about this task must be a matter for him, as also must be the ultimate decision as to whether or not to prosecute. But, as the definition which I have given may show, it ought to be possible to confine the class that requires special treatment to a very narrow band of cases with the result that the Code will continue to apply to all those cases that fall outside it.

"56. I would therefore allow the appeal and require the Director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy's case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act."

This is an interesting example of the common law going where Parliament fears to tread.

Friday, July 31, 2009

Disclosure, fair trial, truth and justice

No progress in development of the idea of the accused's right to a fair trial was made in R v Bjelland [2009] SCC 38 (30 July 2009).    

The remedy for untimely disclosure was discussed, and the court divided 4 – 3 on whether the availability of exclusion should be approached in a restricted way. The majority (per Rothstein J, with McLachlin CJ, LeBel, and Deschamps JJ) held that exclusion is only appropriate if there is no other way of protecting the accused's right to a fair trial or of avoiding compromise to the integrity of the justice system. Here, the judge had wrongly ordered exclusion because the trial could have been delayed further. The minority (per Fish J, with Binnie and Abella JJ) would not have reviewed the judge's decision as there had been no error on an approach that would have permitted wide discretion as to remedy, following the established approach to s 24(1) Charter.

So, what is a "fair trial"? The majority quoted (22) McLachlin J (as she then was) in R v Harrer 1995 CanLII 70 (S.C.C.), [1995] 3 S.C.R. 562 at 45:

"At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, 1987 CanLII 25 (S.C.C.), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused." [Emphasis added by the majority in Bjelland.]

So, fairness means "basic procedural fairness". Ho ho. Now we know.

This was linked to the idea of the trial as a search for truth. I thought the police investigation was a search for truth, and the trial a test of the strength of the evidence presented as a result of that search. The minority thought so too (65):

"The policy of the law in this regard was well put by Samuel Freedman, then Chief Justice of Manitoba, in this well-known passage:

"The objective of a criminal trial is justice. Is the quest of justice synonymous with the search for truth? In most cases, yes. Truth and justice will emerge in a happy coincidence. But not always. Nor should it be thought that the judicial process has necessarily failed if justice and truth do not end up in perfect harmony. . . . [T]he law makes its choice between competing values and declares it is better to close the case without all the available evidence being put on the record. We place a ceiling price on truth. It is glorious to possess, but not at unlimited cost. 'Truth, like all other good things, may be loved unwisely — may be pursued too keenly — may cost too much.' "

"(S. Freedman, "Admissions and Confessions", in R. E. Salhany and R. J. Carter, eds., Studies in Canadian Criminal Evidence (1972), 95, at p. 99, quoting Pearse v. Pearse (1846), 1 De G. & Sm. 11, 63 E.R. 950, at p. 957.)"

Nothing further was offered by the minority on what is a "fair trial".

The majority also held that the right to make full answer and defence does not include as a component the right to cross-examine at preliminary hearing (35). That is no doubt correct now that disclosure regimes have been formalised. No doubt there could be cases where the right to make a full answer requires an opportunity to cross-examine at preliminary hearing, but that opportunity would not amount to a general "right".

Choice

Capacity to make a choice requires understanding, weighing of information, and choosing:

"the case law on capacity has for some time recognised that, to be able to make a decision, the person concerned must not only be able to understand the information relevant to making it but also be able to "weigh [that information] in the balance to arrive at [a] choice": see Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, 295, approved in Re MB (Medical Treatment) [1997] 2 FLR 426."

per Baroness Hale a para 24 of R v C [2009] UKHL 42 (30 July 2009). The choice must be autonomous (free) and must not be driven, for example by a compulsion, delusion, or phobia (25).

Inability to communicate a decision to refuse consent amounts to an inability to make a decision (29).

This was said in the context of the Sexual Offences Act 2003[UK], s 30(1) and (2), but its core is no doubt of wider relevance. It could apply wherever a "decision" is required (avoiding the words "consent" or "refuse"), as in Crimes Act 1961[NZ], s 138.

Friday, July 24, 2009

The two cultures

Answers to jury questions must be responsive and must not deter further questions: R v Layton [2009] SCC 36 (23 July 2009).

If the jury has a copy of the judge's summing up then mere repetition of the words used in it is not likely to be responsive. Here, a direction on the standard of proof led to a question seeking clarification. A difficulty arose because the law is reluctant to elaborate on what "beyond reasonable doubt" means, apart from the standard direction.

It is easy to see why the phrase "beyond reasonable doubt" causes trouble to jurors. It is a description of the required level of proof, which may be thought of as going in one direction, yet at the same time it is expressed in terms of doubt, which tends in the other direction.

As lawyers we are so used to the expression "beyond reasonable doubt" that we take its meaning for granted, ignoring this contradiction in the composite concepts. Even though juries frequently ask for further assistance on the meaning of "beyond reasonable doubt" (see also R v Griffin [2009] SCC 28 noted here 19 June 2009), the law is not clear on what more should be said.

In Layton the standard R v Lifchus, 1997 CanLII 319 (S.C.C.), [1997] 3 S.C.R. 320 direction had been given. In the second day of its deliberation the jury returned with this question:

"Jury requests clarification on reasonable doubt section of charge to the Jury. Particularly difference between absolute certainty and balance of probabilities"

citing the relevant part of the standard direction.

In the terms I mentioned above, although the first sentence refers to doubt, the second is about proof.

The standard direction contained this phrase: "...the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities."

Given that the jury had this in writing, why the question?

It's a mystery to lawyers, and it is not surprising that counsel in this trial had been unable to offer much by way of assistance to the judge in her preparation of the answer.

Perhaps the jury was really seeking clarification on doubt: how much difference is there between no doubt (absolute certainty) and the balance of probabilities? That is a sensible question, because proof on the balance of probabilities can be achieved by elimination of any of a range of doubts. To put it mathematically (as the law doesn't but as people do tend to: see note on R v Wanhalla 25 August 2006), proof on the balance of probabilities may leave no doubt, or up to 49% of doubt. It would be over-proof, but the result would be the same for leaving any level of doubt in that range. For example, if a doubt of 25% remained, it would still be correct to say that the plaintiff had proved his case on the balance of probabilities. So too if the doubt was 10% or 49%. But if the doubt was 51% or more the plaintiff would have failed to prove his case on the balance of probabilities.

The most helpful way of answering the question would be to say that the balance of probabilities is satisfied even though there may be 49% doubt, and absolute certainty is where there is zero doubt. The criminal standard of proof tolerates much less doubt than the balance of probabilities: much closer to zero doubt than to 49% doubt.

But the law doesn't approve of the use of approximate figures or mathematical analogies. The two cultures persist.

Monday, July 20, 2009

Aiming les brickbats at le top

A full eleven days after the decision in Matenga v R [2009] NZSC 18 (13 March 2009, mentioned in note of 9 July 2009) came to my attention, thanks to the Privy Council, I am still a bit grumpy.

Fact-finders: judges compared with juries

A pivotal part of the reasoning in that case is this sentence, beginning para 18:

"It is artificial to say that Judges, while holding one view themselves, may ascribe a different view to the hypothetical jury."

The assumption is that the appellate judges will hold a view of the appropriate verdict in the first place.

It is officially known that juries do not always reach the same verdict that trial judges would have. The New Zealand Law Commission has published a study on juries: "Juries in Criminal Trials – Part Two" Preliminary Paper 37 – Volume 2 (Wellington, November 1999). There, at para 9.3 – 9.4, the authors summarise results on jury agreement and disagreement with the judge in the trials studied:

"9.3 The judge and jury were essentially agreed on the appropriate verdict in 24 out of the 48 trials. These comprised: 17 verdicts of guilty on all or most counts; six verdicts of not guilty; and one verdict of not guilty by reason of insanity. In a further 11 trials, where there was disagreement between judge and jury as to the appropriate verdict on one or more of the counts in the indictment, the jury's view appeared to be reasonable and supportable on the evidence. In most of these cases, the disagreement simply resulted from differences in the assessment of the credibility of key witnesses, but in one case the jury based its verdict on features of the evidence, clearly establishing guilt on one of the counts, which the judge overlooked. Moreover, in many of these cases, judges were in fact hesitant about their view (sometimes making a point of stating that they did not think about it during the trial), and asserted that the jury could reasonably take a different view of the facts from that which they expressed to us. Overall, therefore, a verdict which was either fully supported by the judge or supportable on the evidence was given in 35 out of the 48 trials.

"9.4 In the remaining 13 trials, five were classified as "compromise" verdicts in multiple count cases; three were classified as either perverse or questionable verdicts; and five involved fully hung juries... ." [emphasis in para 9.3 added]

There was no need for Matenga to decide that an appellate court should take on the fact finding role of a jury. But the Court thought this was required by the existence of the proviso:

"[29] Following conviction, after a fair trial by jury, Parliament has given the appeal courts an ability to uphold the conviction despite there being a miscarriage of justice in some respect. While the jury is in general terms the arbiter of guilt in our system of criminal justice, the very existence of the proviso demonstrates that Parliament intended the Judges sitting on the appeal to be the ultimate arbiters of guilt in circumstances in which the proviso applies."

The other view – the one that I suggest is traditional - is that the proviso requires the appellate court to be the ultimate arbiter of the fairness of the trial. That would involve determining whether the law was properly applied to facts determined impartially. Did the error, the miscarriage of justice, give rise to a real risk that the tribunal of fact was rendered partial? Many appeals, where the proviso could not be applied, would be concerned with trials that had not been fair. In deciding fairness, the appellate court does not have to reach its own verdict.

What is a "fair trial"?

Unfortunately, in Matenga the Court seems to have removed much of the content of the concept of a fair trial. This occurred by treating the requirement for a fair trial as something that could be satisfied notwithstanding that further issues of the substantiveness of the miscarriage needed to be decided. The risk is that this reduced concept of a fair trial will be nothing more than a trial by a lawfully constituted tribunal exercising lawful jurisdiction. That is a requirement for a "trial" but it doesn't establish that the trial was "fair".

The idea of a fair trial is important because if the trial was unfair Matenga does not require the appellate court to embark on deciding its own verdict. Yet Matenga, while acknowledging that the accused's right to a fair trial is an absolute right, does not say what a fair trial is. In cases where the trial transcript is a bulky document, appellate judges will be grateful for the opportunity to avoid its close study by deciding the appeal on fairness grounds. But how?

The good bits

It must be acknowledged that Matenga anticipates that wherever there is a credibility contest the proviso will be unlikely to be applied. That was the position in Matenga itself, and there was no detailed discussion of the contentious evidence.

"29 ... considerable caution is necessary before resorting to the proviso when the ultimate issues depend, as they frequently will, on the assessment of witnesses."

Many cases are of that nature. Many others consist of incriminating circumstances and an explanation tendered by the accused; in those the "assessment of witnesses" may focus only on the accused. Even so, Matenga suggests that there also the appellate court would exercise "considerable caution" before dismissing the appeal. So Matenga may be reserved for cases where the prosecution case is circumstantial, where the accused does not give evidence, and where the error at trial would not have prevented a fair trial. Barlow (noted here 9 July 2009) was treated by the Privy Council as an example, although it is open to question on trial fairness grounds: was the jury made partial by being given evidence which may not have been as reliable as it then appeared to be?

Final jette un brickbat

Dissatisfaction with an appellate court's conclusion that a guilty verdict was correct can arise from below (we, the people) or above (the court of second appeal, as in Matenga). Jury trials were invented to place responsibility for the verdict in the best hands. It is better that criticism should be directed at juries than at the judiciary. The jury study shows that the reasonableness of judges as fact-finders is not a given. Judges should stick to their knitting.

Sunday, July 19, 2009

Decision tree or impenetrable thicket?

A difficulty with the balancing exercise described in R v Grant (noted here 18 July 2009) is that there is no indication of when an offence is sufficiently serious to make admission of the improperly obtained evidence a likely outcome.

This difficulty is illustrated in another decision delivered the same day as Grant and applying that case: R v Harrison [2009] SCC 34 (17 July 2009).

The appellant had been driving a hired car which was stopped on a highway by a police officer. The officer did not have sufficient grounds to carry out the search of the car which revealed two cardboard boxes. These contained a total of 35 kg (yes, kilograms) of cocaine.

Again, the Court split. This time the only dissenter was Deschamps J. She would have ruled the evidence admissible.

All judges agreed that the offence was very serious. How could they not? Deschamps J said the offence was at practically the highest point in the spectrum of importance of the public interest in adjudication on the merits (68). McLachlin CJ for the majority said (34) "While the charged offence is serious, this factor must not take on disproportionate significance."

This highlights the underlying forward-looking approach to protecting the repute of the administration of justice, encapsulated in Grant at (84):

" ... The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high."

Critics (and I am one) will say this undervalues the public interest in prevention of the harm caused by criminal activity. Does the breach of Charter-protected interests in Harrison really outweigh the harm to society that 35 kg of cocaine could cause?

The majority in Grant described the evaluation of interests as a "decision tree" (Grant, 86). Unfortunately they did not draw the tree for us. Had someone stolen their crayons?


To be fair, I think the appropriate model is not a decision tree but rather a list of quantities of each of the three items. The decision depends on the total of the quantities. Score for the seriousness of the official misconduct, add a score for the impact of that misconduct on the defendant's rights, and then add (or subtract, if it goes against the trend of the others) another score for society's interests in adjudication of the case on the merits. If the end result is a total that supports admissibility, then that is the decision. The problem becomes - or is revealed to be - one of anticipating total scores that will be required for admission of the evidence.

Update: The approach to the model just mentioned, a move away from a decision tree, is consistent with the Court's summary of the way Grant is to be applied in R v Lafrance, 2022 SCC 32 (22 July, 2022) at [90] (majority judgment; the minority did not need to address this point). The first two factors are to be assessed cumulatively, and then against the third.

Saturday, July 18, 2009

Detention: will R v Grant work?

Having just stated a test for detention (R v Grant, last note today's date), the Supreme Court of Canada has disagreed on its application: R v Suberu [2009] SCC 33 (17 July 2009).

The 5 – 2 split decision suggests the test will be misapplied nearly 29% of the time. And the facts couldn't have been simpler. They are summarised in the headnote as follows:

"Constable R responded to a call about a person attempting to use a stolen credit card at a store. He was advised that there were two male suspects. R entered the store and saw a police officer talking to an employee and a male customer. S[uberu] walked past R and said "He did this, not me, so I guess I can go." R followed S outside and said "Wait a minute. I need to talk to you before you go anywhere", while S was getting into the driver's seat of a minivan. After a brief exchange, R received further information by radio, including the description and licence plate number of the van driven by the men who had used a stolen credit card at another store earlier that day. The description and the licence plate number both matched that of the van in which S was sitting. R also saw shopping bags between and behind the front seats. At this point, R decided that he had reasonable and probable grounds to arrest S for fraud. He advised S of the reason for his arrest and cautioned him as to his right to counsel."

Was the accused detained when R said "Wait a minute. I need to talk to you before you go anywhere"?

The definition of detention in R v Grant is purposive; it is summarised in Grant at 44, and is quoted at para 25 of the majority judgment in Suberu (delivered by McLachlin CJ and Charron J, with LeBel, Deschamps and Abella JJ):

"1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

"2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication."

Applying this, the majority held that Mr Suberu had not been detained (32 – 35). On factor (a):

"32 ... As a whole, the circumstances of the encounter support a reasonable perception that Constable Roughley was orienting himself to the situation rather than intending to deprive Mr. Suberu of his liberty. Further, as noted, Mr. Suberu did not testify or call evidence on that matter. In summary, the circumstances, as revealed by the evidence, do not suggest detention."

And factor (b):

"33 ... it is relevant to note that Constable Roughley made no move to obstruct Mr. Suberu's movement. He simply spoke to him as he sat in his van... Taken as a whole, the conduct of the officer viewed objectively supports the trial judge's view that what was happening at this point was preliminary questioning to find out whether to proceed further."

And factor (c):

"34 ... Mr. Suberu did not testify on the application, and there was no evidence as to whether he subjectively believed that he could not leave. Nor was there evidence of his personal circumstances, feelings or knowledge. ... The Officer testified that Mr. Suberu never told him that he did not wish to speak with him, and that the conversation was not 'strained'."

The dissenters, Binnie J and Fish J, did not agree with that assessment. Binnie J delivered the substantive dissent. He accepted that the test laid down by the majority (of which he was not a part) in Grant applied. The trial judge had found there was a "momentary investigative detention", and the majority should apply the deference that they had indicated was appropriate to the fact-finding court in Grant (Suberu at 57).

"56 The verbal exchange between Constable Roughley and Mr. Suberu clearly established an unambiguous police order. When Mr. Suberu walked past Constable Roughley, saying, 'He did this, not me, so I guess I can go', and Constable Roughley replied, 'Wait a minute. I need to talk to you before you go anywhere', it was a command to stay put. Constable Roughley's words were only ambiguous if one ignores the preceding remark from Mr. Suberu. Constable Roughley was replying to Mr. Suberu, who had essentially said, 'Can I leave?', by essentially saying, 'No'. It was clear to Mr. Suberu that he was not free to go "anywhere" and any reasonable person in that position would have come to the same conclusion. At that point there was, within the meaning of the test in Grant, a detention, in my view, which was unsupported at that stage by any grounds of reasonable suspicion as required by R v Mann, 2004 SCC 52 (CanLII), 2004 SCC 52, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59. My colleagues point out correctly that Constable Roughley did not try physically to obstruct Mr. Suberu's movement but that is why this is a case of psychological, not physical, detention." [Binnie J's emphasis on the word psychological]

There is no suggestion of smugness in Binnie J's observation (61) that on his dissenting approach in Grant, which attached more importance to the police perspective, detention might not have been established here.

"61 ... It is the perspective and information of the police, not the claimant, that will often determine whether the liberty interest of the person stopped was truly engaged."

Obviously both perspectives should be considered. A person can be under detention without knowing it, or he can reasonably think he is under detention when he isn't. The former requires compliance with the person's rights because of the police purpose of collecting incriminating information, and the latter requires compliance because of the coercive nature of reasonably apprehended detention.

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.)