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R v Beaver: A “Fresh Start” for Police, Grave Endings for Charter Protection- exclusion of evidence
by L Bossuyt & C Ross
R v Beaver (Beaver) was a complicated case involving multiple accused, several Charter breaches, and numerous legal issues. Much of the discussion centred on the concept of a “fresh start,” where police can rectify Charter breaches to salvage an investigation.[1] Beaver was the Supreme Court of Canada’s (SCC’s) first direct consideration of the “fresh start” concept, which had proliferated in lower courts following the SCC’s decision in R v Wittwer (Wittwer) in 2008.[2] The Beaver decision was not without controversy, as only five of the nine Justices agreed with the majority and the other four sided with the dissent.
Background
On the night of the impugned event, James Beaver (Beaver) and his roommate Brian Lambert (Lambert) called 9-1-1 and told the operator that they came home to find their landlord Sutton Bowers (Bowers) lying in a pool of blood in their townhouse.[3] The police officers who reported to the scene quickly became suspicious of Beaver and Lambert and detained them shortly after. The detainment was done pursuant to a legislation that contains no power of detainment for police, in breach of the accused’s section 9 Charter rights.[4] Upon returning to the police station, homicide detectives eventually became aware of this unlawful detainment and attempted to make a “fresh start” in the investigation. This was done by reading Beaver and Lambert their Charter rights and then arresting them for murder, all after they had initially been unlawfully detained. A “fresh start” is supposed to sever any temporal, contextual, or causal connection between the evidence and Charter breaches.[5] After this “fresh start”, the two eventually confessed to the homicide.[6] The overarching issue at trial was the admissibility of the confessions into evidence, centring on whether the “fresh start” served to rectify the previous Charter breaches. This would determine that the confessions were not obtained in a manner that breached the Charter.[7]
The trial court judge admitted their confessions into evidence. This was because (1) they did not extract the confessions through threats, promises, police trickery, or oppressive tactics; (2) there were reasonable and probable grounds for the arrest of both suspects; and (3) the fresh start “cured” the initial Charter breaches.[8] The Court of Appeal dismissed the appeals on the convictions and agreed with the trial judges that the “fresh start” was done in a manner that did not breach the Charter.[9]
Justice Jamal, writing for the SCC majority, came to a very similar conclusion as the previous courts.[10] The majority’s “fresh start” analysis centred on whether the police severed any temporal, contextual, or causal connection between the Charter breach and the evidence obtained.[11] In the application, the majority determined there was a “fresh start” for Lambert, but not for Beaver which indicates that Beaver’s confession was obtained in a manner that breached the Charter.[12] Nevertheless, the majority admitted the confession under section 24(2) of the Charter.[13]
As introduced in R v Grant, courts must consider whether the admission of the evidence would bring the administration of justice into disrepute when determining admissibility under section 24(2).[14] Three lines of inquiry guide this analysis (1) The seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits. [15] The third line of inquiry weighed heavily in the majority’s analysis, concluding that admitting Beaver’s confession would not bring the administration of justice into disrepute.[16] The dissent strongly disagreed with the majority, concluding that the confession should be excluded as it would bring the administration of justice into disrepute.[17]
Relevance
Much of the analysis of both the majority and dissent focused on the “fresh start” that was done at the police station. A “fresh start” is a confusing legal concept that even the highest-level court in Canada had a tough time analyzing. The SCC attempted to clarify this by providing potential indicators of a “fresh start.” These include:
● Whether the police informed the accused of the Charter breach;
● The caution indicated towards the accused after the Charter breach but before the impugned evidence was obtained;
● The opportunity for counsel after the breach but before the impugned evidence was obtained;
● The difference in actions with the accused after the breach but before the impugned evidence was obtained; and
● If the accused was released from detention after the breach but before the impugned evidence was obtained.[18]
In Beaver, the court was extremely deliberate when analyzing the language used by the detectives when affecting the “fresh start” with each accused, which drove the divergent conclusions. The difference between the two accused’s decisions was that Lambert’s detective was more careful of the language he used and ensured the detained understood what was being said.[19] The opposite can be said for the detective who gave the “fresh start” to Beaver as she said at one point; “it’s no different than what uh, Constable Husband read to [him]”.[20] This idea of a “fresh start” was not seen in the same light by the dissent.
Justice Martin and the dissent came to the same conclusion that Beaver’s Charter rights were breached. The dissent outright disagreed that the “fresh start” principle is neither a part of our law nor that it should be recognized as part of the law.[21] Stating that a “fresh start” “is an unhelpful label that creates and supports an improper path of reasoning”, the dissent believed that this principle insulates police’s conduct from further review.[22] They concluded that without considering the “fresh start” principle, Beaver’s confession was obtained via multiple breaches of the Charter and its use cannot be justified through section 24 of the Charter.[23]
Commentary and exclusion of evidence
The notion of a “fresh start” detailed by the majority in Beaver will undoubtedly be celebrated in law enforcement circles but should be treated with heavy skepticism. Multiple officers breached several Charter protections, but the majority chose to condone this behaviour by admitting the confession into evidence under section 24(2).[24] The highly probative nature of the evidence, coupled with the severity of the offence, weighed heavily in the majority’s analysis. The majority ultimately determined that admission of the evidence would not bring the administration of justice into disrepute.[25] This analysis was distorted by the “fresh start” concept, which minimized the serious Charter breaches endured by Beaver during the investigation.
One must wonder if the majority didn’t provide the police with a blueprint on how to breach the Charter with minimal consequence. We believe they did, as police can replicate the breaches in Beaver knowing their behaviour will be excused by courts bound by the majority’s decision. After all, the trial judge found that one of the investigators, with seventeen years of experience, “was looking for a way to maintain control over Beaver… but was not exactly sure how to do it.”[26] The investigator’s solution to the problem was to unlawfully detain Beaver under made-up legislation, breaching sections 9, 10(a), and 10(b) in the process.[27] While the evidence derived from that unlawful detention was excluded, Beaver’s confession following the supposed “fresh start” was included. The majority’s “fresh start” concept served to insulate the police from the consequences of their significant breaches.[28] The police have little obstacle for egregiously breaching the Charter, knowing this conduct will be severely diminished by a “fresh start” when it comes time for section 24(2) analysis. This detracts from the holistic approach to s. 24(2) previously taken by courts, which determines whether the breach and obtaining of the evidence is from the same transaction or course of events.[29]
When analyzed holistically, Beaver’s confession would not have been extracted but for the multiple Charter breaches. Its inclusion into evidence would bring the administration of justice into disrepute, making the confession inadmissible under section 24(2).[30] However, the “fresh start” rule serves to excuse the breaches and permit admissibility. There was also no urgency or uncertainty in the law that may have made the Charter breaches more explainable.[31] Instead, the police effectively ignored the Charter to expedite the investigation.[32] Does this mean that police can short–circuit Charter protections to advance investigations, only to have it forgotten once they say sorry? According to the majority, they can, providing a win for police but a blowout loss for individual rights.
The potential impact of this decision is even more dire when you consider the extent of the police’s ignorance of the Charter in this case, as three separate breaches (sections 9, 10(a), 10(b)) were conceded by the Crown.[33] In addition, the dissent found breaches of sections 7 and 8. If the police largely avoid consequences in a case with such extreme breaches, cases with less egregious breaches will pass section 24(2) scrutiny with flying colours, thanks to the majority’s “fresh start” framework. This invites police to run roughshod over the Charter with regularity. The Beaver decision provides police with a “fresh start” to circumvent the Charter, with grave endings for Canadian individuals.
[1] R v Beaver, 2022 SCC 54 [Beaver].
[2] R v Wittwer, 2008 SCC 33.
[3] Beaver, supra note 1 at para 8.
[4] Ibid at para 10.
[5] Ibid at para 97.
[6] Ibid at paras 28 & 29.
[7] Ibid at para 34.
[8] Ibid at paras 32-34.
[9] Ibid at para 39.
[10] Ibid at para 113.
[11] Ibid at para 97.
[12] Ibid at paras 108 & 113.
[13] Ibid at para 135.
[14] R v Grant, 2009 SCC 32 at para 71.
[15] Canadian Charter of Rights and Freedoms, s.24(2), Part I of the Constitution Act, 1982 Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[16] Beaver, supra note 1 at para 135.
[17] Ibid at para 232.
[18] Ibid at para 103.
[19] Ibid at para 107-112.
[20] Ibid at para 114.
[21] Ibid at para 194.
[22] Ibid at para 200-201.
[23] Ibid at para 232-233.
[24] Ibid at para 132.
[25] Ibid at para 135.
[26] Ibid at para 121, quoting ABQB voir dire reasons at para 230.
[27] Ibid at para 121.
[28] Ibid at para 202.
[29] Ibid at para 198.
[30] Ibid at para 203.
[31] Ibid at para 215.
[32] Ibid at para 183.
[33] Ibid at para 90.
