Abstract Populism of the Reasonable Person - Anonymous

Section 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”) concerns whether evidence obtained as a result of Charter-breaching state conduct should be admitted or not. The section essentially dictates that, should the admission of evidence bring the administration of justice into disrepute, the evidence should be excluded. Section 24(2) is as follows:

24. (2) Where, in proceedings under section (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 circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The initial framework for the exclusion of evidence, formulated in R v. Collins, created an essentially automatic exclusionary rule when the impugned evidence was conscriptive. As a result, the framework for exclusion of evidence under section 24(2) of the Charter was reformulated by the Supreme Court of Canda (“the Court”) in R v. Grant (“Grant”). The reformulated s.24(2) framework assesses three factors: the seriousness of the Charter-infringing conduct; the impact of the breach on the accused’s Charter-protected interests; and society’s interest in the adjudication of the case on its merits. The former two factors deal with the effects upon public perception of the justice system that would occur should a court allow the impugned evidence to be admitted. The third factor assesses the effect on public perception of the justice system should a court exclude reliable evidence. The primary intent of the reformulation from Grant was to preserve favorable public opinion in the justice system. The determination of what would bring disrepute to the justice system is done through an objective, reasonable person test. Should a court determine that a reasonable person (dispassionate and duly informed of the circumstances) would find that admitting the impugned evidence would harm the reputation of the justice system, a court can move to distance itself from the Charter-infringing state conduct. Under the Grant formulation, the exclusion or inclusion of evidence obtained through Charter-breaching state conduct ultimately comes down to determining what course of action would best appease public sentiment.

Populism in section 24(2)

The seemingly substantial deference afforded to populist sentiment in the Grant framework poses a number of interesting issues. Chief among these issues is the problem of how populist sentiment is formed, and whether allowing it to have influence in the court system encourages or disparages justice.

Populism can have an expediating effect on the development of the increasingly intrusive surveillance state. The development of a surveillance state and the expansion of police powers associated with the increased protections afforded by a heavily monitored society are results of the liberty-security exchange that occurs between members of society and the state. People are generally willing to exchange liberty in return for security from perceived threats. Michel Foucault’s concept of “apparatuses of security” explores this exchange; the ultimate goal of government is the satisfaction of society, which occurs primarily through feelings of safety, security and political representation. To satisfy these feelings, government establishes apparatuses of security, which cure whatever ailments are prevalent in society. As new ailments appear, the state expands security to appease its citizens.

The issue with affording populism influence in the courts stems from how populist sentiment is informed. The cycle of securitization is spurred on by the populist demand for protection from perceived threats. Perception of threats and desires for increased security are largely informed and directed by the state itself. Through various mechanisms, the state largely influences populist sentiment regarding matters of security. Much of what the courts intend to achieve stems from the courts’ position in society as an impartial third party. In this position, a court acts as a mediator between the state and its people and provides an essential reviewing body that can mitigate abuses of power by the state. Affording significant deference to populist opinion in judicial decisions negates the court’s intended position as impartial third party and gives the state a backdoor into influencing judicial decisions.

Abstract populism of the reasonable person

Beyond affording the state a means of subverting the court’s position as a check on state control powers, how state-informed populism will be interpreted through the lens of justice officials also presents concerns regarding the obscuring of power. The abstract nature of the reasonable person test affords wide interpretative capacity to the courts. The deference to populism has potential to operate as a means for the court to impart its will, through reference to the reasonable person, the conception of whom is directly informed by the court’s perception of the reasonable person.

There are two concerning scenarios here. The first is a situation where a court can effectively impart its will with a meaningless aside to societal representation. This has been criticized as a position in which “the Court [has] the luxury of stating it is minding populist sentiment while simultaneously creating the content of said populist sentiment.” The second concerning scenario is one in which a court does make an earnest attempt at imparting the populist will upon judicial decisions. In this scenario, a court is implementing a decision model that defers to a social sentiment regarding the justice system that has been influenced by the state. This position has been described as one in which “those who police the police will do so under its own interpretations of populism and somewhat beholden to those conceptions.”

Whether these are positive or negative positions, and regardless of which scenario materializes, there is a Foucauldian obscuring of power that occurs as a result. It is harder to pinpoint a specific guiding legal principle when the legal test involves deference to a factor that actively changes unpredictably over time, and is subject to interpretation. Analysing how judicial decisions are made in this context moves further from determining strict legal principles at play and becomes a matter of determining what controls social sentiment. If this power ultimately is in the hands of the state, the populist deference in the Grant framework has the capability to be quite insidious.

In the context of the Grant framework, a court’s conception of the reasonable person is socially formed, which allows government a backdoor into influencing judicial allotment of Charter-breaching behaviours. In light of expanding police search powers and decreasing privacy, deference to the state in matters regarding breaches of Charter rights concerning privacy and protection from abuses of police power should be limited. Courts operate as an unbiased third-party adjudicator and in instances of egregious Charter breaches this role should be guarded from state influence. Deference to the reasonable person as informed by populist sentiment, which is in turn informed directly by state guidance, should be narrow and carefully applied.