A Response To: The Good Does Not Wash Out the Bad - Why the Exclusion of Physical Evidence is Necess
In reading the article, The Good Does Not Wash Out the Bad, by A Hawkeye, the writer commented on how Section 24(2) of the Charter undermines the justice system. (1) The individual did this by considering why we criminally sanction using many philosophical perspectives to illustrate their point under a normative model.
I have to say that I respectfully do not agree with this approach. While it is valuable to understand why we have a justice system and what its function is and should be, we cannot forget why the Charter was put in place and what it safeguards against. To only consider why an accused should be convicted, misses an important aspect on how these individuals came before the system to begin with and whether we as a society support the methods imposed in securing their conviction. Even from a normative perspective, we must not only want the system to “get it right” but to also get it right for the right reasons.
We must also remember that these cases only come before the justice system because evidence was obtained. We do not litigate cases where breaches have occurred but resulted in no evidence being found. Therefore, these are the avenues that an individual’s rights can be protected. These are also the avenues that police officer conduct can come under scrutiny. If an individual who committed a crime is acquitted as part of this process, then the system is working. In following this process, the system shows that it cares more about ensuring fair means of investigation than convictions.
Let us also be clear that before we would ever even get to the Grant (2) analysis, we must first identify and accept that a Charter breach took place. The hurdles that an accused must overcome are not insignificant. The actual process in being granted Charter relief is not simply to declare an infringement. Both sides must present their argument, with the accused normally bearing the burden for proving the breach. Then only if a breach has been found will a Grant analysis proceed as to whether the evidence should be excluded. There are many cases where a judge will find there was a Charter breach, but fail to ultimately exclude the evidence. This also shows that the system is working.
Physical evidence is also not conclusive that a particular accused committed the crime. It is merely one piece in a constellation of evidence. Sometimes it is valuable and necessary for a conviction, however convictions have been returned on less. Further, even if certain physical evidence is excluded, that may not mean an acquittal will follow.
My friend referred to the exclusion of physical evidence as the result of technicalities or accidents resulting in individuals being “let off”. Again, I simply cannot agree. In many instances these are deliberate actions to secure evidence. Whether the police officer in the moment sees it as a deliberate breach of the Charter or not, I cannot comment. However, the pursuit of the evidence is clear and the lengths with which they will go to appears to, in some cases, know no bounds.
Consider for instance, your body. The police decide to conduct a strip search. We know strip searches must be an inherently humiliating experience to have to go through. The act of removing ones clothing in front of a stranger is not something that should be taken lightly. Further, a strip search will usually include the examination of body cavities. Physical evidence can be obtained from a strip search, but do we want to allow police officers to be able to perform such searches in whichever way they see fit?
Now consider the case of R v Golden. (3) Here, the officers were in an investigation where they witnessed what they believed to be Mr. Golden conducting drug deals and ultimately Mr. Golden was arrested. After an unsuccessful pat down looking for weapons for officer safety, the search continued to Mr. Golden’s underwear. The search really should have concluded when officer safety was established by way of the pat down. However, the search and struggle that ensued is almost unfathomable and resulted in a combination of dishwashing gloves, defecation, and all the while taking place in the stairwell and eating area of a Subway. I anticipate my friend would indicate that the means taken to acquire the drugs are irrelevant as the drugs were ultimately produced. The Supreme Court of Canada held however that strip searches are a significant interference with personal privacy, that these searches should not merely be routine, and that the search conducted in this case was unreasonable.
This is not a dystopian example. This was a real individual who had an alarming interaction with the police. Regardless of the value of the physical evidence, as a society do we want to promote this behaviour? This is why Section 24(2) is important and necessary. The lasting impact of Golden implemented scope for when and how police officers are entitled to conduct a strip search.
Let us not forget that just because a police officer is unable to conduct a strip search or a search of a home immediately does not mean that the physical evidence that is required cannot still be obtained. The police still have the ability to obtain a warrant. Assuming the process to obtain said warrant was done so appropriately, then the evidence will likely be admissible. Furthermore, the law accounts for situations that require police to take swift action and entitles them to do so in those circumstances. Taking unreasonable shortcuts is what leads to evidence being dismissed, not technicalities. We must maintain public confidence in the system and in my opinion the Section 24(2) remedy is necessary regardless of the type of evidence.
“The Good Does Not Wash Out The Bad: Reconsidering Exclusion of Physical Evidence”, online: https://www.robsoncrim.com/single-post/2019/01/24/The-Good-Does-Not-Wash-Out-the-Bad-Reconsidering-Exclusion-of-Physical-Evidence---a-student-perspective
R v Grant, 2009 SCC 32 at para 71.
R v Golden, 2001 SCC 83.