The Good Does Not Wash Out the Bad: Reconsidering Exclusion of Physical Evidence - a student perspec

One day, coming out of another fascinating Charter Crim class, I was somewhat dismayed. Several of the cases we had learned about that day had perpetrators who were guilty as sin let off (or very nearly let off) because police misconduct or technicalities excluded key pieces of evidence from the trial. Over the following lunch break, I had some fascinating conversations and debates with my colleagues on the topic of exclusion of evidence, and especially physical evidence.

The day following my Charter Crim class, I was talking with a friend in the general lounge about our property law class. One of the other students, who had overheard my conversation from the previous day, came up to me and asked if I intended to practice property law in a third world country. Perplexed, I said that I didn’t have such an intention and that learning about Manitoban property law would not necessarily be particularly useful for doing so anyways. I was told that I must want to live in a Third World country because I don’t believe in rights. I pointed out that I had only challenged a narrow part of the Charter. I then jested that clearly there had been no rights in Canada before 1982, and life was nasty brutish and short. The student was not much interested in engaging with me in conversation about our differing views on the Charter or exclusion of evidence and left. Nonetheless, it was these conversations and a desire to continue the discussion which inspired me to write this article.

It is often all to easy to fall into the trap of seeing the law, as whole and immovable. Delivered from on high and capable only of being interpreted, but not challenged. Yet it is important to remember what we learn in law school is largely a descriptive overview of the law as it is rather than a normative consideration of what the law ought to be. This is doubly so in the field of constitutional law – after all, the Canadian Constitution has not been substantively amended since 1982, and so long as Meech Lake and Charlottetown remain in living political memory, this state of affairs is likely to persist. Regardless, this should not stop us from critically evaluating the law, and even the hallowed Charter of Rights and Freedoms. Thus, in this article I will make a case challenging a key portion of the Charter which is central to criminal law: section 24(2) on the exclusion of evidence.

Section 24(2) of the Charter is listed under the sub-heading of enforcement of guaranteed rights and freedoms. It states that:

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.

This is the section of the Charter which is most relevant to criminal law since it deals specifically with excluding evidence which was found during an investigation, meaning that its main usage is in criminal law. This section has been cited numerous times in Canadian court cases and is one of the key provisions of the Charter. Jurisprudentially, the primary test for determining whether evidence should be excluded is the Grant test. This comes from the 2009 case of R v Grant, in which the Supreme Court found that, in determining whether evidence should be excluded, the court should consider upholding the integrity of the justice system and preventing it from falling into disrepute when considering whether to exclude evidence where a related Charter breach is found. To this end, the three primary things that the Grant test considers are:

(1) the seriousness of the Charter-infringing state conduct

(2) the impact of the breach on the Charter-protected interests of the accused

(3) society’s interest in the adjudication of the case on its merits.

This attempts to create a balanced framework under which more serious infringements on rights are more likely to lead to evidence exclusion, admission which would undermine rights is less likely to be allowed, and more serious cases are more likely to lead to evidence not being excluded.

In my opinion, this approach works best when it deals with non-physical evidence. For example, the Charter offers safeguards against practices which may lead to false convictions. The possibility and potential value in disallowing non-physical evidence which was obtained through Charter breaches thus makes sense. Nonetheless, I believe that it is wrong for physical evidence to be excluded in the same way. Again, this is not a comment on the law as it is now, but rather an argument that the law should be different.

In many ways, Section 24(2), when applied to physical evidence inherently undermines the goals and values of our justice system. To determine this, it is valuable to consider why we criminally sanction or incarcerate. There are a number of reasons why we do such acts. Most have the underlying premise of normatively setting out what is right and wrong, or at least what society sees as such. Excluding physical evidence allows neither for this, nor for the other major goals that are meant to be achieved through incarceration and sanction.

One of the reasons that we sanction is deterrence. Society wants an act which it finds undesirable to have consequences, so that would-be violators/perpetrators might reconsider their course of action before committing a crime. However, this deterrence is undermined when there is a fair chance of a would-be perpetrator to escape liability through what amounts to a legal loophole due to the negligence of investigators.

The next reason that we more specifically imprison is for the protection of society. Individuals who commit certain undesirable or dangerous acts are often at risk for reoffending and causing further harm to society. Allowing a perpetrator to get off due to evidence of their crime being excluded from trial undermines this purpose.

Another reason why we punish is retributivist. Under this framework, when someone does something wrong, they deserve to be punished. This both vindicates victims of the crime and society’s overall sense of justice/just desserts. Another complimentary view is that respecting someone’s position and worth as a rational individual requires allowing them to face the consequences of their actions, which the retributivist model allows for. Here too, this purpose cannot be fulfilled where evidence exclusion leads to no conviction.

Finally, the last major reason why we incarcerate/give sanction is rehabilitative. The idea under this framework/model is to attempt to take those who have violated laws, and edify them into productive, law-abiding members of society. This sometimes conflicts with the retributivist approach, but nonetheless, is equally crippled in the case of exclusion of evidence being used to obtain an acquittal where the party is guilty.

The three major branches of moral philosophy which underlie these approaches would similarly have fair cause to be skeptical of such exclusions. For example, utilitarianism focuses on maximizing happiness for the greatest number of people. It abhors the retributivist approach to justice, but would not be fond of deterrence, protection of society, and rehabilitation being restricted by a what amounts to a technicality resulting in excluded evidence.

Similarly, even Kantianism, which focuses on the moral worth of the individual as a rational human being would be skeptical. While it would adore vindication of individual rights, it would be appalled that an individual responsibility for one’s actions could be shirked due to how s 24(2) interferes with the retributivist model of justice.

Communitarianism focuses on the community molding humans into moral, rational beings which strive to live the good life. Society’s ability to perpetuate moral teachings and norms (the goal of a justice system in a just society) would be undermined through technicalities leading to exclusion of evidence, which would not sit well with a communitarian approach.

It is inherently arbitrary that some perpetrators of crimes are acquitted while others are convicted, merely due to the accident of how diligent police were. Rights being violated may be a mitigating factor in sentencing. It may even mean that the complainant should have a claim for some form of compensation from the state for such a breach. Additionally, the state agent or agent who violated such rights should be held to account. However, none of these leave the perpetrator any less guilty of the crime which they committed. Neither does such an approach truly punish police, rather, it perversely rewards perpetrators of crimes who are lucky enough to have agents of the state breach their Charter rights.

This proposed approach would not deny that Charter rights should be vindicated, but rather challenges that exclusion of evidence is the best way to do so. After all, having your rights violated does not reduce the severity, consequences, or fact of the crime which you committed. Thus, in my opinion, the justice system, and the many conceptions of justice held by Canadians, would be better served if Section 24(2) did not apply to physical evidence.

More Reading:

R v Grant, 2009 SCC 32 at para 71 [Grant].