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Redefining disrepute : acknowledging social injustice and judicial subjectivity in the critical reform.. Hauschildt, Jordan William Derek 2008-02-03

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REDEFINING DISREPUTE: ACKNOWLEDGING SOCIAL INJUSTICE AND JUDICIALSUBJECTIVITY IN THE CRITICAL REFORM OF SECTION 24(2) OF THE CHARTERbyJORDAN WILLIAM DEREK HAUSCHILDTB.A. (Hons.), The University of Toronto, 2001LL.B., Queen’s University (Kingston), 2004A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF LAWSinTHE FACULTY OF GRADUATE STUDIESTHE UNIVERSITY OF BRITISH COLUMBIA(Vancouver)August 2008© Jordan William Derek Hauschildt, 2008ABSTRACTOn April 17, 1982, the Canadian Charter ofRights and Freedoms was proclaimed into force. Byincluding a set of constitutionally entrenched core legal rights (i.e. ss. 8, 9, and 10(b), and aremedial mechanism designed to enforce those rights (i.e. s. 24(2)), the Charter had the potentialto alter certain repressive elements of the criminal justice system that had endured in Canada forover a century. Despite this potential, both the core legal rights and s. 24(2) were drafted usingvague terminology. As a result, the Charter ‘s ability to succeed where previous attempts atinstituting effective due process protections for Canadians had failed would depend largely onthe judiciary’s ability to satisfactorily craft such protections out of imprecise statutory language.This thesis will argue that the Supreme Court of Canada has created a test for theexclusion of unconstitutionally obtained evidence under s. 24(2) that fails to adequately protectthe core legal rights of the socially, racially and economically marginalized individuals to whomthe Canadian criminal justice system is disproportionately applied. In advancing this argument,the relevant jurisprudence and academic literature will be analyzed according to a methodologyinspired by the Critical Legal Studies movement. The issue of exclusion will be examined in itssocial context, primarily by analyzing the current system of Canadian criminal justice andacknowledging its over-application to the socially disenfranchised. It will be argued that theSupreme Court’s test for exclusion has developed as it has because of the judiciary’ssubconscious tendency to interpret unclear constitutional provisions in keeping with thedominant conservative ideology, a method that favours maintaining the social status quo.The purpose of this thesis is to set out a framework for a reform of the Charter ‘sexclusionary mechanism. This new approach will attempt to situate social context at the forefrontof the s. 24(2) decision-making process. It will be argued that the concept of “disrepute” withins. 24(2) must be redefined so that it captures investigatory practices made possible by unjustsocial, racial and economic divisions that render certain groups powerless, and thus morevulnerable to police surveillance.11TABLE OF CONTENTSAbstractiiTable of ContentsiiiAcknowledgements vi1. Introduction 11.1. Academic justification and methodology 81.2. Organization of research and analysis 24Chapter 2. A History of Canadian Criminal Justice and its Relationship to s. 24(2) 262.1. Pinning the tail on a donkey: The purpose of Canada’s criminal justice system 282.2. Marxist conceptions of criminal justice 322.3. Repressing the repressiveness of Canada’s criminal justice system 352.4. Targeting the socially powerless 402.5. The nature of Canadian policing 442.5.1. “It’s us against them”: The police worldview 452.5.2. Policing in the penumbra 482.5.3. The police vs. the courts: Implementing “unfavourable” Charter rulings 512.5.4. “Testalying”: The practice of police perjury 532.5.5. The practice of racial profiling 562.5.6. The social realities of policing in Canada 602.6. Conclusion to Chapter 2 61Chapter 3. The Rise of Canada’s Exclusionary Rule 633.1. Origins: Exclusion in the U.S. and pre-Charter Canada 633.2. Creating s. 24(2): The language of a political compromise 713.3. The Supreme Court and Canada’s exclusionary rule 733.3.1. The route to the exclusionary remedy 733.3.2. Section 24(1): Canada’s “other” exclusionary mechanism 743.4. Excluding evidence under s. 24(2) 773.4.1. R. v. Therens 783.4.2. R. v. Collins 843.4.3. R. v. Stiliman 883.4.4. The s. 24(2) test after Stillman 941113.5. Conclusion to Chapter3.96Chapter 4. Judicial Discretion, Adjudicative Subjectivity, and s. 24(2) 984.1. Judging the judges: The judicial interpretation of vague constitutional provisions 994.1 .1. The Supreme Court on the Supreme Court: An interpretational self-analysis 1004.1.2. The crime control critique of exclusion under s. 24(2) 1034.1.3. The liberal/due process critique of Charter interpretation 1104.2. Theory in action: The Supreme Court, discretionary decision-making, and s. 24(2) 1144.2.1. A “conservative” court, a “conservative” test 1154.2.1 .1. The average law-abiding Canadian 1164.2.1.2. The average law-abiding Canadian judge 1184.2.3. Trial fairness and the conscriptive/non-conscriptive distinction 1194.2.4. The discoverability doctrine 1244.2.5. Illegally seized corporate documents and s. 24(2) 1264.3. Reconciling judicial subjectivity, dominant ideologies and the s. 24(2) controversy 1294.4. Conclusion to Chapter 4 137Chapter 5. The Consequences of Subjectivity 1395.1. Rights without remedies 1395.1.1. Charter violations and monetary damages 1415.1.2. The lesser alternative remedies approach 1425.1.3. Non-absolute exclusion and s. 24(2) 1455.1.4. Individual remedies and s. 24(2) 1475.1.5. Deterrence, judicial integrity and the exclusion of evidence 1495.1.6. Exclusion as the only effective remedy 1525.2. Artificial distinctions and the misuse of s. 24(2) 1535.3. Failing to guard the guardians 1585.3.1. The Canadian position on good faith police conduct 1595.3.2. Legitimate “good faith” or “self-preservation” 1745.5. Conclusion to Chapter 5 176Chapter 6. Redefining Disrepute: The Future of s. 24(2) 1786.1. The fallacy of original intent 1806.2. Properly situating s. 24(2) within the true rights-limiting mechanisms 1866.2.1. The “limitations clause” 1876.2.2. The “notwithstanding clause” 189iv6.2.3. Limiting the limitation of rights 1906.3. Creating an environment amenable to the effective reform of s. 24(2)1916.3.1. Changing the philosophy of exclusion 1916.3.2. Acknowledging the practical impact of the Charter ‘s core legal rights 1946.3.3. Acknowledging the need for change 1986.4. The critical reform of s. 24(2) 1986.4.1. The scope of the core legal rights and s. 24(2) 1996.4.2. Redefining disrepute in the s. 24(2) context 2016,4.3. Outlining a new interpretive methodology for s. 24(2) 2046.4.4. The truly minimal rights violation 2096.4.5. The immateriality of “good faith” police conduct in the reformed s. 24(2) 2116.5. The new exclusionary rule in action 2136.5.1. Orbanski revisited 2146.5.2. Feeney revisited 2186.5.3.L.B. revisited 2216.6. Conclusion to Chapter 6 223Chapter 7. Conclusion 225BibliographyvACKNOWLEDGEMENTSI offer my gratitude to the faculty, staff and my fellowstudents at the Faculty of Law, UBC.Iowe particular thanks to Dr. Janine Benedet, whosequestions and criticism made this projectmore thorough and consistent. I also thank ProfessorIsabel Grant for her assistance and herhelpful suggestions.Particular thanks are owed to my parents, who haveoffered me endless and unconditionalsupport throughout many years of education and manychanges in profession direction.I also thank Régine Lapointe for her encouragementand her enthusiasm throughout the year.vi1. IntroductionIt is a summer day in Likely, a small town with approximately 300 residents, located in BritishColumbia’s bucolic Cariboo region. One of those 300 residents, 85-year old Frank Boyle, liesdead in his home, brutally bludgeoned to death by an intruder.’ He has been struck in the headfive successive times with an iron bar.2 Each blow was of sufficient magnitude to cause hisdeath.3The assault has left Boyle’s blood spattered over much of the interior of his home. Blooddrips from the walls, from the furniture. Beer, cigarettes and a small amount of cash are missingfrom the residence.4 The deceased’s red Datsun pick-up truck is also gone.5 Based oninformation from several civilian bystanders, the police venture out into the small, now shatteredcommunity to begin their investigation.6The hunt for a murderer is on.The red Datsun rests in a ditch a short distance from Boyle’s home, crashed anddeserted.7A witness informs police that she observed the truck in the ditch at 6:45 am thatmorning, and that she also saw an individual walking away from the accident scene around thesame time. She identifies that person as Michael Feeney.8Another witness provides police withinformation on how to locate Feeney. That witness rents property to Feeney’s sister and hercommon law spouse, and he knows that Feeney resides in a trailer located on that property.9TheR.C.M.P. attend the rental property and once there, they interview the common law spouse. Heinforms them that Feeney returned from a night of drinking at 7:00 am that morning, and that heis currently asleep inside his trailer.10 Armed with this information, the police approach thewindowless trailer in which Feeney is sleeping, knock on the front door, and verbally identifythemselves as police.” They are met with silence. The lead officer draws his gun and enters theresidence.’2Once inside, the police proceed toward Feeney’s bed and observe him to be indeedasleep. The lead officer shakes Feeney’s leg to awaken him, and then informs him that he wants1R. v. Feeney, [1997] 2 S.C.R. 13 at para. 6, 146 D.L.R. (4th) 609 [Feeney cited to S.C.R.].2lbidIbid.4lbid. atpara. 11.Ibid. at para. 7.679‘°Ibid atpara. 8.“Ibid at para. 9.1to ask him some questions. Feeney is asked to move into the light.13 When he obliges, the officernotices that his clothes are covered in blood.’4The hunt has been a short one. Feeney is arrested and informed of his Charter righttocontact legal counsel. When the officers ask him whether he understands his rights he retorts,“Of course, do you think I’m illiterate?”5He is then transported to the police detachment innearby Williams Lake, where he makes several unsuccessful attempts to contact hisFeeney is interviewed by police, and eventually admits to having attacked Boyle, having takenbeer, cigarettes and cash from his home, and having stolen his red Datsun pick-up Thepolice obtain a search warrant for Feeney’s trailer, where the cigarettes and cash from Boyle’shome are later found and seized.’8Feeney is charged with murder in connection with the killingof Frank Boyle.’9Ten years later, on fall day in Toronto, Ontario, two plainclothes police officers arepatrolling a notoriously crime-prone neighbourhood in an unmarked police vehicle.20 As theofficers drive past a high school, they notice a young black male, F., leaning against the railingof a path leading toward the school. As the police continue through the area in their car, theynotice F glance in the direction of a second black youth, L.B., who is seated on school propertyand a distance away from F. The two males are separated by a flight of stairs and a fence.2’Theofficers turn their vehicle around in order to begin surveillance on the two youths. They notice Fcast a number of looks in the general direction of L.B., and observe that the two youths appear tobe speaking to one another.22 The fact that the two young men are positioned in such a mannerproduces an “uneasy feeling” in the officers.23 As a result, they decide to speak to the youths inorder to determine whether they are engaged in illegal activities. To facilitate thiscommunication, the officers drive their vehicle across several lanes of traffic and park directly infront of F. The police cruiser now rests in the northbound lane, positioned opposite to the naturalflow of traffic.2413Ibid14Ibid15Ibid‘6Ibid atpara. 10.‘7Ibid atpara. 11.18Ibid.19Ibid atpara. 12.20R v. L.B., 2007 ONCA 596, 86 O.R. (3d) 730 at para. 11 [LB.].22Ibid atpara. 12.23Ibid atpara. 13.24IbicL atpara. 14.2The police officers exit their vehicle, verbally identify themselves to F as Toronto police,and display their badges and warrant cards.25 The officers then observe L.B., who appears to becarrying a black bag in his right hand, rise from his seated position, walk down the flight of stairsand proceed along the sidewalk toward their position.26 There is nothing threatening about themanner in which L.B. performs these actions. He appears calm, dutifully approaching men inplainclothes who claim to be police. Once he has reached their location, one of the officersengages L.B. in casual conversation. The other officer proceeds to speak with F.27 L.B. isquestioned about his reasons for being at the school. He informs the first officer that he is a newstudent there, and that he is not currently in class because he has a free period.28 When the officerasks for L.B.’s name and date of birth, the young man complies.29Both officers know that at this time, they have no legal right to detain either L.B. or F.3°Nevertheless, the officers use the police computer to inquire into the statuses of the two youngmen. While doing so, one officer notices that L.B. is no longer carrying the black bag heappeared to have had in his hand while he was seated at the top of the stairs. The officer proceedsto that area, eventually locates the bag and questions the two youths as to whom it belongs. Fdoes not respond and L.B. suggests that it does not belong to him.3’The officer therefore treatsthe bag as “abandoned”, opens it and discovers schoolwork bearing L.B.’s name and a loaded .22caliber handgun.32 Through a series of shouts, the officer verbally alerts his partner about thepresence of a gun on the scene. L.B. and F. are arrested at gunpoint.33 L.B. is later charged withpossession of a loaded, restricted firearm as well as seven other firearms-related offences.34These two scenarios are each troubling, but in contrary ways. In the first case, avulnerable member of a small community is senselessly and brutally murdered in his own home.The immense tragedy of this situation appears to be somewhat abated as the police quicklyidentify and apprehend a suspect, from whom they eventually obtain a full confession.Conversely, the second situation involves two young black males who attend high school in alow-income neighbourhood in Toronto. For engaging in the seemingly innocuous act of sitting25Jbid atpara. 15.26IbicL atpara. 16.27.jbjd atpara. 18.281b1d atpara. para. 20.301b1d. atpara.21.31Ibid. at paras. 24-25.321b1d atpara.25.Ibid34Ibid atpara. 1.3down near a high school, the youths are placed under surveillance and are eventually questionedby police. This “selectively proactive”35policing cannot be justified by the fact that it eventuallyled to the discovery of a loaded, illegal firearm.Although the situations are distinguishable on their facts, they also bear an importantsimilarity. Each case highlights the tension between society’s interest in safeguarding individualdue process protections and its interest in facilitating the efficient prosecution of criminalsuspects through the promotion of effective investigatory techniques for police. Both scenariosrequire an assessment of the propriety of police investigatory procedures in light of the dueprocess rights provided to Feeney and L.B. by the Canadian Charter ofRights and Freedoms.36The difficulty that courts have in making these assessments is effectively illustrated by theeventual outcomes of Feeney and L.B. Michael Feeney was initially tried and convicted ofsecond-degree murder for his role in the killing of Frank Boyle.37 Although his convictionwithstood an appeal to the British Columbia Court of Appeal,38 the majority of the SupremeCourt of Canada ultimately decided that the police obtained vital pieces of evidence in a mannerthat violated the accused’s rights under ss. 8 and 10(b), and that admission of that evidence attrial would bring the administration of justice into disrepute.39 The majority therefore set asideFeeney’s conviction, and ordered a new trial.40 At his second trial two years later, Feeney wasconvicted of second-degree murder, a charge the Crown was able to substantiate without theillegally obtained evidence that had been successfully impugned at the first trial.41L.B. ‘ s case was resolved in an entirely different manner. At first instance, the trial judgefound violations of L.B.’s rights under ss. 9 and 10(b) and excluded the .22 caliber handgun fromthe proceedings, which resulted in L.B. being acquitted.42However, the Ontario Court of Appealdisagreed with the trial judge’s decision, finding instead that the police did not detain L.B., andthat it was therefore not necessary for them to provide the youth with a reasonable opportunity toretain and instruct counsel.43 There were thus no Charter violations, and the trial judge wastherefore wrong to exclude any of the evidence secured against L.B. from his criminal trial.uIbid at paras. 58-59. Despite acknowledging that racial profiling or harassment on the part of police could berelevant to the issue of psychological detention in relation to s. 9, the Ontario Court of Appeal opted to leave thisissue unresolved in L.B. as the defence did not raise allegations of improper police conduct.361of The Constitution Ace, 1982, being Schedule B to The Canada Act 1982 (UK), 1982, c. 11 [Charter].Feeney, supra note 1, at para. 12.38IbicL atpara. 12.39IbicL atpara. 5.40IbicL atpara. 85.41SeeR. v. Feeney, 2001 BCCA 113, 152 C.C.C. (3d) 390.supra note 20, at para. 1-2.Ibid at para. 72.4Despite finding that the police investigation of L.B. had not infringed the Charter, the Court ofAppeal further held that even if the officers had violated L.B.’s Charter rights, those violationswould not have been of sufficient severity to exclude the evidence under s. 24(2). That decisionhas since been appealed to the Supreme Court of Canada. However, as it stands today, L.B. —guilty of nothing more than conversing with a friend at the time the police happened upon him —was to face the entirety of the evidence produced by the police investigation. On the other hand,Feeney — whom several witnesses had linked to a brutal murder — would not.One could be forgiven for expecting the court in Feeney to have reached the conclusionarrived at by the court in L.B., and vice versa. At first glance, it would appear that there is abetter argument for admitting the statements, the bloody shirt, the cigarettes and the cash inFeeney than there is for admitting the handgun in L.B. In the former case, the police merelyapproached and questioned an individual who had been specifically identified as a suspect in avicious murder. They did so in what appeared to be a relatively innocuous manner, knocking onFeeney’s front door, announcing themselves before entering. In the latter case, the police appearto have approached and questioned an individual based solely on his physical appearance and hisgeographical location. They appear to have unreasonably taken evasive action, racing anunmarked police across several lanes of traffic to confront a young man who was seated on abench, not engaged in doing anything in particular. When these outcomes are compared on abasic level, their disparate results appear to be utterly irreconcilable. The disparity of treatmentonly grows starker with further examination. For instance, the courts found the police action inFeeney to have been malicious in nature, while the police in L.B. were deemed to have acted ingood faith. Certainly then, the jurisprudence driving these two decisions bears further analysis.At a fundamental level, the decisions in Feeney and L.B. are expressive of theoverarching difficulties that the courts have had — and continue to have — in interpreting thescope of individual rights protections when they come into direct conflict with the criminaljustice system’s ability to successfully prosecute criminals. Which aim is to prevail? Should thecourts ensure that individual rights are paramount in all borderline cases? Or should they ensurethat overly expansive due process protections do not unduly curtail police investigations and thesubsequent trial and punishment of criminal offenders? Can due process protections ever besatisfactorily reconciled with effective crime control measures? Questions such as these havepersisted for more than 25 years. As Feeney and L.B. demonstrate, the courts have yet to provideany conclusive answers.5The judiciary’s various attempts at reconciling these competing values do not representthe only sources from which opinions on the topic are generated. The media and the generalpublic also frequently weigh in on the subject, particularly when individual rights are perceivedto be conflicting with society ability to bring criminals to “justice”. Neither the decision inFeeney nor the ruling in L. B. was particularly well received, although for very different reasons.Feeney was rejected for allowing what was seen as a “technical” rights violation to frustrate theCrown’s ability to efficiently punish a murderer.44 The L.B. ruling was impugned — albeit to alesser extent — for seemingly ignoring a Charter violation simply because of the form ofevidence that violation produced.45 As such, these decisions force the public to face hardquestions as well. Should they forego their protection from undue interference by the state inorder to ensure criminals are not shielded from punishment? Who do they need more protectionfrom, criminals or government agents? When considered together, then, the decisions in Feeneyand L.B. serve as a microcosmic example of a much larger issue. Each case forces the courts andthe public to confront the inherent conflict between two distinct, but undeniably interrelatedconcepts. What has become clear is that this conflict has the potential to erode both public andjudicial respect for individual rights in Canada.The debate set out in Feeney and L.B. has been at the centre of Canadian criminal lawsince the Charter was proclaimed into force on April 17, 1982. On that date, the rights andfreedoms contained within the document became an integral part of Canada’s supreme law,46 andthus the criminal trial process as well. Since its promulgation, Canada’s entrenched bill of rightshas generated an immense body of case law, commentary and criticism that is perhaps mostpronounced and most controversial in relation to criminal law and the prosecution process. Thecommentary and criticism in this regard pertains almost entirely to the core legal rights,47 whichrepresent the heart of the due process protections available in Canada. The Charter now plays arole in virtually every criminal trial in Canada, mostly insofar as the core legal rights serve to‘For the media response to Feeney, see e.g. Joey Thompson, “Charter for wrongdoers” The Vancouver Province (4July 1997) A14; Rory Leishman, “Feeney judgment needs explanation” The Montreal Gazette (3 September 1998)B3; and Jeffrey White, “Getting away with murder: Wrongful releases can be far more harmful than wrongfulconvictions” The National Post (12 November 1999) A14.‘For the media response to L. B., see e.g. Tracey Tyler, “Public safety trumps Charter rights” The Toronto Star (6September 2007) Al; and Tracey Tyler, “Will rights be ignored in gun crimes?” The Toronto Star (7 September2007) A19,46See Part VII of The Constitution Act, 1982, being Schedule B to The Canada Act 1982 (UK), 1982, c. 11 at s. 52[Constitution Act 1982].‘For the purposes of this paper, the term “core legal rights” should be taken to refer to ss. 8, 9, and 10(b) of theCharter. See Daniel C. Santoro, “The Unprincipled Use of Originalism and Section 24(2) of the Charter” (2007) 45Alta. L. Rev. I at para. 7 [Santoro].6constrain police procedure in the investigation and arrest of criminal suspects. Although themajority of Canadians value these important personal protections, the respect for individual dueprocess rights is significantly complicated — and often radically diminished — when it is appliedto people involved in criminal activity. In this context, popular support for the sanctity ofindividual rights has a tendency to ebb in deference to the criminal justice system’s goal ofsuccessflully prosecuting criminals in the name of ensuring community safety.The clash between individual rights protection and the preservation of effective policeinvestigations reaches its climax in s. 24(2) of the Charter.48 This section vests a court with thepower to exclude evidence — regardless of its reliability and probative value — from the criminaltrial process if the court is satisfied that the admission of that evidence could cause theadministration ofjustice to be brought into disrepute. It is at the point that such a ruling is madethat crime control and due process come into direct contact. The acrimonious relationshipbetween these two concepts has ensured that the Charter’s exclusionary mechanism has had aturbulent history. As LeBel J. noted in a recent judgment involving s. 24(2):[i]t is likely that few Charter provisions have generated so much academic comment, conflictingjurisprudential developments, media rhetoric or just plain uneasiness as s. 24(2). Since the Chartercame into force, our Court has returned on many occasions to the interpretation and application ofthis provision. It has developed and refmed methods of analysis and application. Despite all theseefforts, doubts and misunderstandings remain.49Although LeBel J. did not specifically identify the root source of the controversy surrounding s.24(2), it is most likely because the section represents the point at which the abstract ideascontained within the Charter ‘s core legal rights take on a directly recognizable impact in society.When the abstraction of due process becomes the reality of exclusion, the concept of corelegal rights becomes vulnerable to attack. Virtually everyone agrees that the police should not bepermitted to forcibly gain entry into a private home simply because they want to ensure that nocriminal activity is taking place in side. However, there is substantially less agreement regardingwhether the evidence gathered as a result of such an illegal intrusion should be used against thathome’s occupant, especially when that evidence conclusively indicates that he or she is involvedin the commission of a criminal offence. Although the rights are acceptable in theory, theirpractical impact often generates dissent. Frustration mounts when the factually guilty areperceived as being allowed to escape punishment if crucial evidence must be excluded from theirtrials because the police failed to abide by one of the core legal rights, which by this point in theCharter, supra note 36, at s. 24(2).49R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3 at para. 87 [Orbanskij.7process are typically characterized as investigatory niceties established by the Charter to hinderthe police and help criminals. As this controversy suggests, the practical impact of the Charter ‘score legal rights is inextricably linked to judicial interpretation and application of s. 24(2). It isequally as clear that the Supreme Court has thus far been unable to arrive at an interpretation ofthe section capable of ending the controversy that has surrounded the exclusionary mechanismfor the past quarter century.1.1. Academic justification and methodologyAs LeBel J.’s remarks suggest, the Supreme Court of Canada’s treatment of s. 24(2) hasgenerated considerable academic commentary and criticism. Most of this criticism — which tendsto centre on the Supreme Court’s leading rulings on exclusion — has been decidedly negative, andbecame even more so in the wake of the Court’s decision in R. v. Stillman.5°However, prior tothe Court’s issuance of the first of its landmark pronouncements on the section, the relevantacademic writing was essentially limited to introducing the concept of excludingunconstitutionally obtained evidence, providing detailed explanations of each constituent part ofs. 24(2), and offering general prognostications as to how the Supreme Court might eventuallyinterpret those parts.5’Though the volume of this essentially descriptive commentary seemsrelatively minimal when it is compared to what came later, it has nevertheless had a far-reachingimpact on the overall debate, and is often still cited as authoritative on certain points more thantwo decades after it was first composed.52After the Supreme Court weighed in on the s. 24(2) debate in the mid-1980s,53the relatedcommentary acquired a deeply prescriptive tone. Once the section had been interpreted by thenation’s highest court, it did not take long for critiques of that interpretation to be launched froma multitude of sources possessing different philosophical and political points of view. Over the°[1997] I S.C.R. 607, 144 D.L.R. (4th) 193 [Stiliman cited to S.C.R.].51See e.g. A.A. McLelIan & B.P. Elman, “The Enforcement of the Canadian Charter of Rights and Freedoms: AnAnalysis of Section 24” (1983) 24 AIta. L. Rev. 205 [McLellan & Elman]; Dale Gibson, “Enforcement of theCanadian Charter of Rights and Freedoms (Section 24)” in Walter S. Tamopolsky & Gerald-A. Beaudoin, eds.,Canadian Charter ofRights and Freedoms (Toronto: The Carswell Company Limited, 1982) 489; and Yves-MarieMorissette, “The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms: What to Do and WhatNot to Do” (1984) 29 McGill L.J. 521 [Morissette].52See e.g. R. v. Collins, [1987] 1 S.C.R. 265, 38 D.L.R. (4th) 508 at para. 33 [Collins cited to S.C.R.] (Lamer J.referring to Morissette in employing the reasonable person test as the method for determine disrepute); and DonStuart, Charter Justice in Canadian Criminal Law, 3d ed. (Scarborough, Ont.: Thomson Canada Limited, 2001) at454, n. 7 [Stuart, Charter Justice] (relying on “heavily” on McLellan & Elman in setting out the legislative historyof s. 24).The Supreme Court did not explicitly rule on s. 24(2) until 1985. Up to that point, the judicial debate concerningthe section had taken place primarily amongst the Courts of Appeal of Ontario and British Columbia. See Stuart,Charter Justice, supra note 52, at 476-480.8next quarter century, the Supreme Court’s development of Canada’s exclusionary rule was to besubject to frequent academic attacks, many of which are founded on notions of the criminaljustice system that adhere closely to the crime control model as set out by Herbert L. Packer.54According to Packer, the crime control model is characterized by:[t]he proposition that the repression of criminal conduct is by far the most important function to beperformed by the criminal process. The failure of law enforcement to bring criminal conduct undertight control is viewed as leading to the breakdown of public order and thence to the disappearanceof an important condition of human freedom. If the laws go unenforced, which is to say, if it isperceived that there is a high percentage of failure to apprehend and convict in the criminalprocess, a general disregard for legal controls tends to develop. The law-abiding citizen thenbecomes the victim of all sorts of unjustifiable invasions of his interests. His security of personand property is sharply diminished and, therefore, so is his liberty to function as a member ofsociety.In order to ensure that the laws are enforced to the maximum extent possible, the crime controlmodel focuses heavily on increasing the system’s ability to efficiently determine guilt and applypunishment.56For the purposes of this thesis, s. 24(2) scholarship that bears the hallmarks of thecrime control model will be described as crime control or conservative critiques of the SupremeCourt of Canada jurisprudence pertaining to exclusion. The word “conservative” is used in thiscontext not in its traditional political sense, but rather to denote a body of thought that exhibits ageneral resistance to change or innovation, particularly with regard to those alterations thatwould affect existing social structures and dynamics.Despite their prevalence, the conservative/crime control commentaries by no meansenjoy a monopoly on expressing displeasure with the interpretation and application of s. 24(2).Those who favour more broadly based individual rights protections have also extensivelycriticized the Supreme Court’s handling of the Charter’s exclusionary mechanism. Theseaccounts are founded to varying degrees on Packer’s due process model of criminal justice,which stresses the form of prosecutions to a far greater degree than does the crime control model.In this regard, the due process model is fundamentally concerned with ensuring “[fjormal,adjudicative, adversary factfinding processes in which the factual case against the accused ispublicly heard by an impartial tribunal and is evaluated only after the accused has had a fullopportunity to discredit the case against him.”57 As a result of this concern, the due processmodel places far less importance on the goal of efficiency:[b]ecause of its potency in subjecting the individual to the coercive power of the state, the criminalprocess must ... be subjected to controls and safeguards that prevent it from operating withHerbert L. Packer, “Two Models of the Criminal Process” (1964) 113 U. Pa. L. Rev. Vol. 1 [Packer].55IbicL at 9-10.56IbicL at 10.571b1cL at 14.9maximal efficiency. According to this ideology, maximal efficiency means maximal tyranny. And,while no one would assert that minimal efficiency means minimal tyranny, the proponents of theDue Process Model would accept with considerable equanimity a substantial diminution in theefficiency with which the criminal process operates in the interest of preventing officialoppression of the individual.58When s. 24(2) commentaries appear driven by the fundamental aspects of the due process model,they will be referred to in this paper as due process, liberal or liberal-minded approaches to theissue of exclusion. The term “liberal” is not intended to refer to any particular form of politicalpolicy, but rather as more of a counterpoint to the conservative approaches that register a clearresistance to systemic change. While the more liberal approaches to exclusion do not explicitlyadvocate for any major changes to the social order, they do recognize the power imbalances thatexist between the individual and the state, and that these imbalances are more extreme withregard to marginalized social groups. They are thus more open to jurisprudential shifts that mayeffect broader social situations.Taken together, the vast array of s. 24(2) commentaries — conservative and liberal-minded critiques alike — can essentially be categorized into two primary classes. First, there arethose who posit that the Supreme Court has interpreted s. 24(2) in a manner that unjustifiablyresults in the over-exclusion of tangible evidence of guilt.59 Second, there are those who view theCourt’s s. 24(2) case law as improperly limiting the range of rights violations to which exclusionwill apply.6°Far fewer in number are the articles that fall outside these groups, such as those that58Ibid at 16.See e.g. Carol A. Brewer, “Stiliman and Section 24(2): Much To-Do about Nothing” (1997) 2 Can. Crim. L.R.239 [Brewer]; Richard C. Fraser & Jennifer A.I. Addison, “What’s Truth Got to Do with It? The Supreme Court ofCanada and Section 24(2)” (2004) 29 Queen’s L.J. 823 [Fraser & Addison]; David M. Paciocco, “The JudicialRepeal of Section 24(2) and the Development of the Canadian Exclusionary Rule” (1989-90) 32 Crim. L.Q. 326[Paciocco, “Judicial Repeal”]; David M. Paciocco, “Stiliman, Disproportion and the Fair Trial Dichotomy underSection 24(2)” (1997) 2 Can. Crim. L.R. 163 [Paciocco, “Disproportion”]; David M. Paciocco, Getting Away WithMurder: The Canadian Criminal Justice System (Toronto: Irwin Law, 1999) [Paciocco, Murder]; Julianne Parfett,“A Triumph of Liberalism: The Supreme Court of Canada and the Exclusion of Evidence” (2002) 40 Alta. L. Rev.299 [Parfett]; Steven Penney, “Unreal Distinctions: The Exclusion of Unfairly Obtained Evidence Under 5. 24(2) ofthe Charter” (1994) 32 Alta. L. Rev. 782 [Penney, “Unreal”]; Steven Penney, “Taking Deterrence Seriously:Excluding Unconstitutionally Obtained Evidence Under Section 24(2) of the Charter” (2003) 49 McGill L.J. 105[Penney, “Deterrence”]; and J.A.E. Pottow, “Constitutional Remedies in the Criminal Context: A Unified Approachto Section 24, Part II— Section 24(2) in Crisis” (2000) 44 Crim. L.Q. 34 [Pottow].60See e.g. Stephen G. Coughlan, “Good Faith and Exclusion of Evidence Under the Charter” (1992) 11 C.R. (4th)304 [Coughlan]; Michael Davies, “Alternative Approaches to the Exclusion of Evidence Under s. 24(2) of theCharter” (2002)46 Crim. L.Q. 21 [Davies]; R.J. Delisle, “Collins: An Unjustified Distinction” (1987) 56 C.R. (3d)216 [Delisle, “Unjustified”]; R.J. Delisle, “The Exclusion of Evidence Obtained Contrary to the Charter: Where AreWe Now?” (1988) 67 C.R. (3d) 288 at 292 [Delisle, “Exclusion”]; Bruce B. Elman, “Collins v. The Queen: FurtherJurisprudence on Section 24(2) of the Charter” (1987) 25 Alta L. Rev. 477 [Elman]; Grace Hession, “Is ‘RealEvidence’ Still a Factor in the Assessment of Trial Fairness under Section 24(2)?” (1999) 41 Crim L.Q. 93; RichardMahoney, “Problems with the Current Approach to s. 24(2) of the Charter: An Inevitable Discovery” (1999) 42Crim. L.Q. 443 [Mahoney]; Don Stuart, “Burlingham and Silveira: New Charter Standards to Control PoliceManipulation and Exclusion of Evidence” (1995), 38 C.R. (4th) 386 [Stuart, “Police Manipulation”]; DonStuart,10either tentatively support the current s. 24(2) jurisprudence, or at least attempt to defend it fromcontinued attack.6’An even more limited number of commentators somewhat straddle bothprimary groups, attacking the Supreme Court’s failure to abide by the intent and language of s.24(2) on the one hand, while also impugning its unjustifiable, pro-inclusion bifurcation ofCharter rights on the other.62When considered as a whole, the body of legal writing devoted to the rigorous analysis ofs. 24(2) is an undeniably large. This scholarship has been highly influential in the evolution ofCanada’s exclusionary mechanism. Indeed, early academic contributions as to how the sectionought to be interpreted played a direct role in the Supreme Court’s majority decision in Collins.63Similarly, critiques of the Court’s subsequent s. 24(2) jurisprudence greatly influenced landmarkdecisions such as R. v. Burlingham,64and Stillman.65 The relevant academic contributions havethus served as valuable resources that have been relied upon by the Court when it has attemptedto clarif’ and strengthen its approach to the exclusion of unconstitutionally obtained evidence.The various commentaries have also successfully highlighted several internal inconsistencies insome of the more influential s. 24(2) decisions, and they have carefully documented andanalyzed the numerous developments that have occurred in the Supreme Court’s interpretationand application of the section.66 These historical facts are testaments to the indispensable rolethat the existing s. 24(2) scholarship has played in the Court’s development of the Charter’sexclusionary rule.The successes achieved by the academic criticisms pertaining to exclusion do not,however, mean that there is not still more that can be accomplished in this area. As the generalcategories of s. 24(2) scholarship suggest, the overall body of work is characterized by aseemingly broad plurality of philosophical vantage points. Despite this impression, the“Questioning the Discoverability Doctrine in Section 24(2) Rulings” (1996), 48 C.R. (4th) 351 [Stuart,“Questioning”]; Don Stuart, “Eight Plus Twenty Four Two Equals Zero” (1998) 13 C.R. (5th) 50 [Stuart, “Eight”];and Stuart, Charter Justice, supra note 52.61See e.g. Kent Roach, “Constitutionalizing Disrepute: Exclusion of Evidence After Therens” (1986) 44 U.T. Fac.L. Rev. 209; Kent Roach, “The Evolving Fair Trial Test Under Section 24(2) of the Charter” (1996) 1 Can. Crim. L.Rev. 117 at 134 [Roach, “Evolving”]; and Santoro, supra note 47.62See e.g. Adam Parachin, “Compromising on the Compromise: The Supreme Court and Section 24(2) of theCharter” (2000) 10 Windsor Rev. Legal Soc. Issues 7 [Parachin].63See Collins, supra note 52, at para. 33 (citing Morissette, supra note 51).64[1995] 2 S.C.R. 206, 124 D.L.R. (4th) 7 at 139 (Sopinka J. citing Paciocco, “Judicial Repeal”, supra note 59;Morissette, supra note 51; Delisle, “Unjustified”, supra note 60; and Penney, “Unreal”, supra note 59).65See Stillman, supra note 50, at para. 191 (L’Heureux-Dube J. citing Stuart, “Police Manipulation” supra note 60,and Stuart, “Questioning”, supra note 60); at para. 239 (McLachlin J. citing Paciocco, “Judicial Repeal”, supra note59).66See e.g. Mahoney, supra note 60; Stuart, “Eight”, supra note 60; and Brewer, supra note 59.11methodological approach taken to the study of s. 24(2) thus far does not exhibit a noticeabledegree of diversity. As Steven Penney has argued, the entire body of s. 24(2) criticism:[h]as been largely void of theory. Commentators have pointed out ambiguities and contradictionsin the doctrine and have argued that exclusion should be less or more frequent on the basis ofgeneral preferences for truth seeking or rights protection in the criminal justice process. They havealso canvassed the various rationales for exclusion and pointed out aspects of the Court’sjurisprudence that are consistent or inconsistent with those rationales. But few have attempted toprescribe an exclusionary regime that is tied to and justified by a single, coherent exclusionarytheory.67Indeed, the majority of the scholarship devoted to s. 24(2) has been limited by a focus on parsingthe details of the Supreme Court’s multitudinous rulings on the subject, ascertaining andimpugning the various flaws and contradictions in that jurisprudence, and then advocating for anarrowing or broadening of the exclusionary ambit, depending upon whether the authorsubscribes to the crime control model or the due process model of criminal justice.Authors such as Penney analyze the Supreme Court’s development of the Charter ‘sexclusionary mechanism from a more theoretical standpoint. But they do so on a relativelynarrow plain. The theoretical bases employed to analyze the subject are essentially limited tothree oft-cited rationales for the exclusion of unconstitutionally obtained evidence that isotherwise reliable and probative: (i) the remedial imperative; (ii) the deterrence rationale; and(iii) the imperative of judicial integrity.68 In the regular course of such analyses, one or anotherof these rationales is selected, while the others are refuted, usually through appeal to thesupposed intentions underlying the language of s. 24(2), by reference to the admittedly limitedempirical studies undertaken on the effects of excluding evidence for constitutional violations, orthrough some combination of both methods. There is inevitably one rationale left standing, and itis first used to refute the current exclusionary rule jurisprudence, and to then chart a new path forthe interpretation and application of s. 24(2), one that is more logically and practically appealingto the author by whom it is advanced. If adopted by the Court, the suggested route of reform isthen promised to more appropriately respect the spirit and intent of the section, and to be morelogically defensible against critical attack.Despite earnest efforts at moving the s. 24(2) scholarship from the criticism of variousaspects of the undeniably complex Supreme Court jurisprudence and on to suggestions forwholesale reform, these more theoretical approaches remain somewhat limited by theiradherence to the dominant discursive ideology. More specifically, mainstream s. 24(2) thought67Penney, “Deterrance”, supra note 59, at 108.68Paciocco, “Judicial Repeal”, supra note 59, at 330-333.12appears to suggest that the “right” answer to the dilemma of exclusion can be found by engagingin a limited analysis, focusing primarily on the text of the Charter. Robert Unger has argued thatthis “formalist” approach to legal thought relies in part on:[a] commitment to, and therefore also a belief in the possibility of a method of legal justificationthat contrasts with open-ended disputes about the basic terms of social life, disputes that peoplecall ideological, philosophical or visionary. Such conflicts fall far short of the closely guardedcanon of inference and argument that the formalist claims for legal analysis. This formalism holdsimpersonal purposes, policies, and principles to be indispensable components of legal reasoning.69By this definition, all forms of s. 24(2) scholarship — the theory-based assessments included — areto a degree constrained by formalism. They employ a narrow, purportedly value-neutral range oftheories in order to assess the various intricacies established in individual s. 24(2)determinations. However, they do not go as far as assessing the underlying rationale behind thejudicial decision-making processes that produce each individual ruling. Further, they judge theSupreme Court’s mediation of the conflict between the protection of individual rights and themaintenance of effective crime control mechanisms without also judging the socio-legalenvironment in which that conflict exists. As a result, the exclusion of evidence under s. 24(2) iscommonly analyzed in the absence of its social and adjudicative contexts, as though it existswithin a textbook, utopian version of criminal justice.This limited scope helps to explain why commentators with purportedly disparatephilosophical outlooks consistently reach similar conclusions in their analysis of s. 24(2). Theacademic condemnation of the Supreme Court of Canada’s leading rulings on exclusion is nearuniversal. Although the reasoning process employed in crime control and due process critiquesoften differs, they navigate essentially the same path through the relevant jurisprudence, and theneither impugn the Court’s creation of an anti-inclusionary rule for some forms of evidence, or itscreation of an anti-exclusionary rule for other forms of evidence. Such criticisms implicitlysuggest that the context in which these decisions are rendered is fundamentally acceptable, andthat it is simply in the interpretation of a particular word or phrase that the real problems exist.Although the deeper issues are clearly visible below the surface, they do not drive the analysis.In this way, the two seemingly divergent branches of academic scholarship can be viewedas essentially agreeing with one another regarding the fundamental issues at play in the processof exclusion. This phenomenon is certainly not unique to the legal thought related to s. 24(2). AsAlan Hutchinson has observed:69Roberto M. Unger, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986) at 1[Unger, CLS].13[m]odern jurisprudence is an intellectual battleground in which internecine struggle iscommonplace and seems to represent its natural condition. Vast intellectual energies are spent inhair-splitting exercises, and minor disagreements are allowed (or encouraged) to mushroom intofull-blown intellectual wars. But the divergence of opinion is more apparent than real. Behind thetheoretical clamor and personal antagonism is a not-so-surprising homogeneity of philosophicalinterest and political affiliation.‘°The s. 24(2) scholarship, then, favours recommendations for the making of minor changes to thecase law, or the reversal of particularly “unfavorable” decisions rather than calling for a radicaloverhaul of the interpretive approach to the section. As Hutchinson further argues, this result isto be expected when it is acknowledged that at the root of all mainstream legal debates, “[tjhereexists a tacitly shared agenda of issues to be confronted, and their attempted resolution proceedson the basis of joint assumptions about the availability and acceptability of certain methods oranswers.”71None of this is to say that this body of criticism has been of no — or only a very limited —utility. As has been indicated, the intensive scrutiny to which s. 24(2) has been subjected hassignificantly impacted the development of Canada’s exclusionary rule. What is missing from thisscholarship, however, is a critical analysis of the societal superstructures into which the Charterand s. 24(2) have been inserted. Without injecting this additional layer of analysis, s. 24(2)scholarship cannot progress beyond what it has already accomplished, and will necessarilydevolve into nothing more than idle repetition of what has come before. Worse still, by ignoringthe social context in which s. 24(2) operates, the related scholarship could begin to obscure thesocial elements of the judicial decision-making process that has driven the development of thesection up to this point. As Duncan Kennedy has observed, legal thought’s dismissal of larger,society-wide issues allows for the scholarly work pertaining to a particular point to assist in themaintenance of the legal status quo. By excluding analysis of the overarching social structures,legal thought comes to suggest that all that is needed to remedy complex problems are the“[mjinor adjustments of a legal regime that is basically sound, and needs only a little tinkering tomake it perfect.”72One reason the s. 24(2) commentary has advocated only minor, legalistic changes, isbecause it has largely employed what Kennedy refers to as “the natural law approach” to legalanalysis. This process involves analyzing the results of past cases for their relative correctness or‘°Alan C. Hutchinson, “Introduction” in Alan C. Hutchinson, ed. Critical Legal Studies (Totowa, New Jersey:Rowman & Littlefield Publishers Inc., 1989) 1 at 2 [Hutchinson, “Introduction”].71Ibid72Duncan Kennedy, “The Structure of Blackstone’s Commentaries” (1979) 28 Buff L. Rev. 205 at 212 [Kennedy,“Blackstone”].14incorrectness, and proposing and defending different results when the conclusions that wereactually reached by the courts are deemed rationally unacceptable.73What this process generallyneglects to do, however, is to look beyond the limits of the case law when engaged in the processof canvassing specific individual decisions for rationality and logical propriety. The s. 24(2)scholarship does not generally assess the Supreme Court’s rulings on additional levels, forinstance by reference to the prevailing social conditions in which those rulings are made, andhow those conditions influence the process of judging that is taking place. As a result, the factthat police investigations are disproportionately directed at racially and economicallymarginalized people, for example, plays no explicit role in the s. 24(2) analysis.This situation is problematic as this disproportionality is clearly relevant to the issue ofexclusion. As the mechanism of policing is more often applied to socially disadvantaged groups,individual members of these groups are subjected to greater degrees of police surveillance thanothers. This in turn means that they will be investigated more often, that the police will morefrequently detect their crimes, and that their Charter rights will be violated with greaterregularity in the course of the ensuing investigations. If the police routinely stop and searchindividuals living in one neighborhood more often than those who live elsewhere, more of theformer group’s crime will be detected than the latter’s. Likewise, if police disproportionatelyinvestigate racial and ethnic minorities, more of the offences committed by those groups will beuncovered. Increased investigations and arrests will also inevitably lead to increased Charterviolations, and therefore more instances on which incriminating evidence is obtained in anunconstitutional mariner. These realities mean that s. 24(2) is triggered on a more frequent basisinsofar as it applies to the core legal rights of the socially marginalized.However, this does not mean that all of the crimes committed by these over-policedgroups will be detected equally. Police surveillance more efficiently deals with relatively high-visibility crimes such as drug and firearms offences. The investigation of these offences focuseson searching for tangible evidence of guilt, which makes the successful charging and prosecutionof these crimes easier than it is for lower visibility offences such as sexual assault and domesticviolence, which depend primarily upon the investigator’s ability to secure the cooperation ofwitnesses. Thus, police surveillance is routinely centred on the poor and the raciallymarginalized, and most often detects the highly visible and easily investigable crimes committedby these individuals. This means that most Charter violations occur in this context, and that asIbid. at 219.15such, s. 24(2) is disproportionately applicable to these individuals and to the admission oftangible evidence of guilt. It is therefore necessary for the current interpretation and applicationof s. 24(2) to be analyzed with these circumstances firmly in mind. If s. 24(2) cannot give effectto the core legal rights in the context in which it most often operates, those rights unavoidablylose a large portion of their practical impact, reducing both their functionality and their overallmeaning. However, notions of disproportionality have been largely absent from the critiques ofCanada’s exclusionary rule because incorporating such notions would require rethinking not onlys. 24(2) itself, but also the legal system in which it operates. As Duncan Kennedy has stated,“[t]he people doing legal thought have always been members of a ruling class. Implicit loyaltyoaths have always been a condition of admission to the inner circles of legality.”74In order to assess the Supreme Court’s current s. 24(2) jurisprudence in a manner thatdiffers from the existing work, it is necessary to take a more holistically critical approach. Thisanalysis draws from approaches inspired by the Critical Legal Studies movement (CLS).Hutchinson — a noted CLS scholar — describes the movement as“[tihemost sustained andserious attempt to date by leftist lawyers to expose the political dimensions of the adjudicativeand legal process.”75 The principle idea driving CLS is its acknowledgment of law’s tendency tolegitimize otherwise illegitimate means of social organization. Rather than approaching legalissues in a manner that serves to reinforce law’s legitimizing effects, CLS scholars seek todirectly confront the illegitimacy of the very institutions that mainstream legal thought strives tomaintain. As Hutchinson suggests, CLS proponents view “[t]he Rule of Law [asi a mask thatlends to existing social structures the appearance of legitimacy and inevitability; it transforms thecontingency of social history into a fixed set of structural arrangements and ideologicalcommitments.”76To this end, CLS seeks to demonstrate “[t]hat the status quo and its intellectualfootings, far from being built on the hard rock of historical necessity, are actually sited on theshifting sands of social contingency . ..‘7 This form critical analysis is particularly relevant tothe discussion of s. 24(2) as it requires more than the mere examination of particular SupremeCourt rulings. It demands a confrontation with the motives that underlie those rulings — be theyconscious or subconscious. It requires that the assessment of those rulings take place in theirproper social-structural setting, rather than in an artificial, contextless vacuum.74Ibid. at 218.Hutchinson, “Introduction”, supra note 70, at 2.761b1d at3.77micz16Although CLS was originally conceived as a radical counterpoint to mainstream legalscholarship and judicial reasoning produced in the United States, its role in expanding theinterpretative and directional scope of legal thought need not be limited solely to Americansources. As Hutchinson explains, CLS’s “[p]olitical and legal project is firmly anchored inconcrete American conditions. Its very shape and life history, short as it is, can be fullycomprehended only in terms of the history and practice of the American legal, academic, andpolitical establishments.”78 However, CLS is clearly applicable to the Canadian legalestablishment as well. Indeed, many of the characteristics of the American regime on which CLSis based are arguably present to a significant extent in Canada. According to Hutchinson, CLS isconceptually linked to the United States because of that country’ s:[flack of any established or sizeable left tradition in popular politics; the isolation andvictimization of left intellectuals in the universities; the male monopoly on legal and politicalpower; the legacy of institutional racism; the thoroughly professional orientation of legaleducation; the neo-formalists’ domestication of realism’s radical message; and the centrality of theSupreme Court in the American constitutional scheme and national psyche.79Hutchinson himself linked the CLS movement directly to the “Anglo-Canadian” experience,80and would in later years embark on critical analysis of the effects that formalist liberalism andthe Charter have on Canadian society.8’As such, despite being grounded in American values,CLS is clearly appropriate for the critical analysis of Canadian legal regimes.While CLS clearly applies within the Canadian context and has been used to advancegeneral theories of Charter adjudication, only a limited number of Canadian commentators haveexplicitly considered whether the CLS critique is directly applicable to the core legal rights. Inone such instance, James Stribopoulos commented on the doctrine’s application to the arrestprocess in Canada, ultimately rejecting it as being based on a “faulty foundation.”82 In thisregard, Stribopoulos notes that:[fit proceeds from the assumption that absent the Charter and the judicial law-making that itushered in, problems relating to police accountability would have found their solutions through thedemocratic process. What this thesis ignores, to its peril, is that long before the Charter Canadahad a mature democracy. Nevertheless, despite the fact that numerous government-sponsoredcommissions and inquiries had found serious wrongdoing on the part of various Canadian policeforces, the democratic process alone had not yet yielded meaningful reforms.8378IbicL at6.ibid.80IbicL at 10, n. 8.81See Allan C. Hutchinson, Waitingfor Coraf A Critique ofLaw and Rights (Toronto: University of Toronto Press,1995) [Hutchinson, Coraf].82Stribopoulos, A Theory ofthe Supreme Court ofCanada, Police Powers, and the Canadian Charter ofRights and Freedoms (J.S.D. Thesis, Columbia University School of Law, 2007) at 8 [Stribopoulos, Theory].83Ibid.17Stribopoulos contends that the Charter was the true catalyst for the reforms that have occurred,arguing that litigation of the core legal rights helped publicize police misconduct, therebyinstigating an otherwise uninterested political branch to initiate a legislative reform of the arrestprocess.84 As a result, he concludes that “[ajithough the CLS thesis does a very good job ofpointing out the limitations of our judicial process, it fails to acknowledge those limitations thatare also somewhat inherent in our political process.”85Stated simply, Stribopoulos’ argument is that without the Charter, the frailties ofCanada’s arrest process would never have fully come to light and that, as such, the Charter itselfcannot be to blame for the increased repressiveness of the Canadian criminal justice system.What he does not discuss at any length, however, is how s. 24(2) has impacted upon the practicaleffectiveness of the core legal rights that have been interpreted and applied by the SupremeCourt. While it is undeniable that the Court has developed enhanced due process protectionsduring the Charter era, and that these enhancements could not have occurred in absence of thedocument’s proclamation, it is much less clear whether these protections serve as anything morethan the means through which illegitimate arrest procedures are satisfactorily legitimized. It isnot enough to posit that the Charter has brought changes to the criminal justice process. Whatmust be determined is whether these changes are superficial or significant. Without an effectiveremedial mechanism, the Court’s development of due process protections can have largely noeffect on the nature of police misconduct. If admission is the result regardless of whether or notthe police transgress due process rules, the Charter ‘s oversight of the arrest process simplymaintains the perception that Canada’s supreme law regulates that process, and therefore makesit legitimate. Rather than assuming that the Charter ‘s impact is significant and progressive, CLSrequires a deeper analysis of the social context in which the core legal rights and s. 24(2) exist.As such, it is a particularly apt methodology for the analysis of the Charter ‘s legitimizing role.While CLS is applicable to the Supreme Court’s development of s. 24(2), the doctrine isnot monolithic. To the contrary, CLS critiques exist in a wide variety of forms and are leveledfrom a number of distinct critical perspectives. Nevertheless, they share a fundamentalcommonality of approach, which can be accurately divided into two related methodologicalcategories: (i) the internal operation of CLS; and (ii) the external operation of CLS.86 Indiscussing the core elements of the internal approach, Hutchinson explains that it:84IbicL at 8-9.85Ibid. at 10.86Hutchinson, “Introduction”, supra note 70, at 3-4.18[t]akes seriously conventional writing, both scholarly and judicial. CLS engages jurists and judgeson their own turf and shows how they fail to live up to their vaunted standards of rationality andcoherence: they cannot withstand the debilitating force of their own critical apparatus. The maintarget of CLS has been the crucial distinction between law and politics or, to be more precise, thealleged contrast between the open ideological nature of political debate and the boundedobjectivity of legal reasoning. CLS rejects this axiomatic premise of traditional lawyering.87The internal operation, then, is intended to reveal “[t]he established and irrepressible presence ofincoherence and contradiction [which] delegitimates and demystifies the authority of law inconstructing and maintaining social reality.”88 This approach is distinguished from CLS’sexternal operation, which is devoted to the discrediting and dismantling of “[t]he whole traditionof rationalist epistemology As Hutchinson succinctly observes, the external operation ofCLS “[d]oes not simply contest the practical policies yielded by traditional legal theorizing; itrejects the very basis of contemporary legal theorizing.”90The implications of the external operation of CLS are undeniably radical. Rather thanstriving for the direct confrontational engagement of dominant legal theory on specific fronts,proponents of this view aim toward the complete dismantling and reconfiguration of legalthought and in turn, the state and all current systems of social interaction. Roberto Unger’sanalysis falls into this category, advancing as it does the reorganization of government, theeconomy, and the overarching system of rights.91 In order to accomplish these aims, Unger callsfor a form of “political and cultural revolution” that involves remaking “[a]ll direct personalconnections — such as those between superiors and subordinates or men and women — byemancipating them from a background plan of social division and hierarchy.”92In Unger’s view,this plan must be systematically broken down and ultimately eliminated by the overallreinvention of the democratic notion.93 At its core, the new conception democracy involvesradically reorienting the concept so that it is principally concerned with establishing “[a] socialorder all of whose basic features are directly or indirectly chosen by equal citizens and rights-holders rather than imposed by irresponsible privilege or blind tradition.”94Although the critical study of the Charter, individual rights, and Canadian criminaljustice is certainly amenable to analysis using the more radical external operation of CLS, the87Ibid. at4.88Ibid. at5.89Jbjd90m’d91Unger, CLS, supra note 69, at 25.92Jbid at 26.93IbicL at 28.94IbicL at 30.19movement’s internal operation is more directly applicable to the Supreme Court’s developmentof the s. 24(2) jurisprudence. In fact, the internal operation of CLS appears to be the mostoptimal method of analysis in this context, as the Charter’s exclusionary rule is entirely judge-made. Rather than treating judicial decision-making as merely peripheral to the actual decisionsthat are rendered, the internal operation of CLS deals with this foundational issue directly,positing that “[tjhe esoteric and convoluted nature of legal doctrine is an accommodating screento obscure its indeterminacy and the inescapable element of judicial choice.”95 Once this isacknowledged, it is misleading to analyze the judicial development of Canada’s exclusionaryrule by dissecting the process through which such judicial development occurs. As Hutchinsonhas argued, CLS takes the position that “[t]here exists doctrinal indeterminacy with anideological slant. The judicial emperor, clothed and coifed in appropriately legitimate andvoguish garb by the scholarly rag trade, chooses and acts to protect and preserve the propertiedinterest of vested white and male power.”96 The necessary confrontation with the Canadianjudiciary’s ideological slant, as well as the acknowledgement of the contingent historicalstructures encouraging this collective mentality, are elements that mainstream legal thoughtpertaining to the Charter’s exclusionary mechanism has thus far steadfastly avoided.The current s. 24(2) scholarship’s tendency to leave the social-structural issues related tothe section unaddressed does not render those issues moot. They continue to exist, and theycontinue to affect the practical context in which Canada’s exclusionary mechanism operates, andthus the context in which its relative effectiveness or ineffectiveness must ultimately be assessed.Therefore, the analysis and argument offered here will attempt to critically assess the SupremeCourt of Canada’s development of the Charter’s exclusionary rule by taking into account thefundamental nature of the social structures and institutions most immediately relevant to s. 24(2):(i) the Canadian criminal justice system; and (ii) the Canadian judiciary’s process constitutionalinterpretation. To this end, it will first be argued that Canada’s criminal justice system wasoriginally structured as a means of social control whereby the economically and raciallydisadvantaged segments of society were subjected to disproportionate police attention in aneffort to maintain existing social and economic power arrangements. It will also be contendedthat the system has not progressed much beyond these origins, and that it instead continues tomaintain the societal status quo.95IbicL at4.961b1d20Second, this thesis will assert that the composition of the Canadian judiciary renders itsusceptible to arguments that favour the interests of dominant social groups. As the judiciary isoverwhelmingly selected from society’s dominant social classes, judges tend to identify with thecollective ideals and goals of these groups. This in turn means that when the judiciary isinevitably called upon to employ its subjective beliefs in the interpretation of unclearconstitutional provisions, the resulting jurisprudence is both consciously and subconsciouslyinformed by the ideals and goals of the most powerful segments of society. As the administrationof criminal justice is typically directed toward the socially marginalized, the ideals of thepowerful routinely conflict with the ideals of the powerless. It will be argued that the judicialsubjectivity pervading the current process of Charter interpretation has led to the development ofa s. 24(2) jurisprudence that serves to limit the overall practical impact of the Charter ‘s corelegal rights. This situation undeniably has a disproportionately negative impact on themarginalized social groups to whom the criminal justice system is currently over-applied.Approaching the issue of exclusion of evidence under the Charter in a critical mannerrequires the search for answers to questions that might otherwise be seen as irrelevant in the s.24(2) analysis. For example, in the context of L. B., it requires a serious inquiry into the officers’motivation for their initial decision to observe and eventually interrogate two young black maleswho appeared to being doing nothing more than sitting near a high school in a lower incomeneighbourhood when they first came to the attention of the police. Under a critical approach to s.24(2), this form of police investigatory conduct cannot be justified by the fact that it ultimatelyled to the discovery of a firearm. Instead, the CLS critique mandates that an account be taken ofall those instances in which searches of visible minorities are conducted under similar pretensesbut do not produce tangible evidence of criminal wrongdoing. Under the critical assessment, thereality of such occurrences cannot be ignored. Similarly, applying the critical approach to Feeneywould shift the focus away from the crime allegedly committed by the accused and onto theinvestigatory conduct of the police. If the reformed approach is used, the fact that the officershonestly and reasonably believed that they were investigating the correct person would notdiminish the fact that they acted with little regard for his Charter rights, or for the procedures putin place to ensure the propriety of police investigations. Moreover, the new test would not overlyemphasize those aspects of a rights violation — such as the fact that it involved an illegal searchof a private home — that tend to favour the interests of society’s dominant groups. In this way, theCLS approach to s. 24(2) ensures that the social realities of policing are not ignored wheninvestigatory misconduct is formally litigated. To the contrary, when the critical approach is21employed in the context of exclusion, these social realities necessarily play a central role in theeventual outcome of every case.Because the analytical focus of this thesis will be broadened to include an assessment ofthe social structures relevant to the exclusionary mechanism, no attempt will be made to takeaccount of every s. 24(2) ruling that has been formally issued to date. Indeed, even with anarrower focus, such an endeavor would be far beyond the scope of this project.97 Instead, thecase-based analysis will be limited to a critique of each of the three leading Supreme Court ofCanada rulings on the exclusion of evidence obtained contrary to the Charter. Several additionalnoteworthy Supreme Court decisions related to s. 24(2) and the Therens/Collins/Stiliman regimewill also be addressed, as will several decisions from various provincial courts of appeal that areparticularly representative of recent trends in the related jurisprudence. Although limited inscope, this case analysis will provide a sufficient basis for the ensuing critical analysis of theSupreme Court’s decision-making process in the s. 24(2) context.The exclusionary regime created by Therens/Collins/Stiliman will then be criticallyexamined in an effort to shift the debate away from its current focus on whether the rule resultsin either the over exclusion or under exclusion of unconstitutionally obtained evidence. Thisfocus unduly limits the range of options for reform. As Hutchinson has argued, “[tihe discursivecategories of the law are neither determinative nor dispositive. Although they do not sanctionand produce a detailed set of social prescriptions and consequences, they do stake out the venue,weapons and strategies for political struggle. As such, law is a formidable obstacle to any realsocial change In an effort to remedy this situation in the s. 24(2) context, the SupremeCourt’s leading s. 24(2) jurisprudence will be assessed by reference to the repressive features ofthe Canadian criminal justice system, both as it was initially conceived, and in its modern legacy.The legal reasoning employed in these cases will also be critiqued in an attempt to explain themethodology used by judges when they must interpret unclear constitutional provisions. It willbe argued that as judges continue to be selected from society’s privileged groups, and that theyThe three leading Supreme Court rulings on s. 24(2) are generally accepted to be R.v. Therens, [1985] 1 S.C.R.613, 18 D.L.R. (4th) 655 [Therens cited to S.C.R.J. Collins, supra note 52, and Stiliman, supra note 50. Thesubsequent judicial treatment of these three rulings is vast. As of the date of writing, the decision in Therens hasbeen followed 209 times, questioned once, distinguished 45 times, explained 144 times, and mentioned 1177 times.Collins has been followed 920 times, questioned once, distinguished 13 times, explained 148 times, and mentioned1981 times. Additionally, Stillman has been followed 279 times, questioned once, distinguished 22 times, explained99 times, and mentioned on 1099 occasions. Even allowing for the inevitable overlap between the judicialtreatments of these three cases, it would be all but impossible to take account of all — or even most — of the relevantdecisions.98Allan C. Hutchinson, Dwelling on the Threshold: Critical Essays on Modern Legal Thought (Toronto: TheCarswell Company Limited, 1988) at 21 [Hutchinson, Dwelling].22tend to render decisions in keeping with the ideals and values commonly exhibited by membersof those groups. As a result, unclear provisions are often interpreted in a manner that ensureseither only small-scale changes are permitted, or that the status quo is maintained altogether. Inan attempt to confront this issue, problems that flow from this form ofjudicial analysis will alsobe documented.These examinations will provide a broad based foundation on which the propriety of theTherens/Collins/Stiliman regime can be accurately assessed. Rather than being limited to judgingwhether or not the relevant jurisprudence is internally consistent, this thesis will drawconclusions based on additional analysis of the social superstructures that necessarily play a rolein the interpretation and application of s. 24(2). This will demonstrate that the currentinterpretation of s. 24(2) has transformed the Charter ‘s exclusionary rule into a rights limitingmechanism, one that threatens to render the core legal rights substantially less effective in theirprincipal practical application. By reducing the practical effectiveness of the constitutionalizeddue process protections, the current s. 24(2) simultaneously allows the core legal rights tolegitimize the negative features of the criminal justice system — namely its over-application to thesocially disenfranchised — that play a significant role in maintaining existing social inequalities.When viewed in this context, it is obvious that a reform of Canada’s exclusionary rule isneeded. In order for that reform to be effective, the current approach must be changed so that itadequately responds to the social realities within which s. 24(2) operates. I argue that this reformought to be based on a reconfiguration of the concept of “disrepute” as it is employed within s.24(2). Rather than adopting an interpretation through which only the most egregious and obviousCharter violations are deemed capable of necessitating exclusion, the Supreme Court mustexpand the notion of disrepute so that it captures police investigatory practices that arise as aresult of the unjust social, racial and economic divisions that render certain groups powerless,and thus more vulnerable to police surveillance. The fact that certain social groups are over-policed while other, more powerful groups are left to pursue illegal activities with no — or at leastconsiderably less — police interference must be recognized in the interpretation of theexclusionary rule. Briefly stated, s. 24(2) cannot be structured so that only responds to the typeof rights violations that occur only rarely. Rather, all police investigatory practices thatdisproportionately victimize the disenfranchised members of society must be acknowledged asbringing the administration ofjustice into disrepute. The conclusion to this thesis considers howsuch a model might work, and applies it to some existing cases that have generated controversyover whether illegally obtained evidence ought to have been admitted or excluded.231.2. Organization of research and analysisThe ultimate purpose of this thesis is to set out a prescriptive framework for a reform of thejudicial interpretation of the Charter’s exclusionary mechanism. In order to accomplish this goal,it is necessary to engage in a number of preliminary — and somewhat more descriptive — analysesof the context in which s. 24(2) exists, and of the various elements that come together to informits interpretation and application. To this end, Chapter 1 will engage in a predominantlydescriptive analysis of the criminal justice context into which the Charter ‘s core legal rights ands. 24(2) were inserted. It will also examine current policing practices in Canada by exploring thetopic from a sociological point of view. Chapter 2 will then examine the history and developmentof the exclusion of evidence in Canada. It will briefly discuss the pre-Charter approach toillegally obtained evidence and will set out the process by which the current wording of s. 24(2)was chosen. This chapter will primarily detail the major Supreme Court of Canada rulingspertaining to s. 24(2), beginning with the Therens decision from 1985, and ending with theStiliman ruling delivered in 1997.Chapter 3 will address several theories of how the adjudicative process unfolds in theconstitutional context, specifically focusing on those theories that attempt to explain howCanadian courts have interpreted the vague provisions of the Charter. These theories will beapplied to the Supreme Court’s leading s. 24(2) rulings in an attempt to determine the nature ofthe Court’s approach to the development of Canada’s exclusionary rule. This will demonstratethat the current s. 24(2) jurisprudence is influenced by restrictive notions of the extent to whichthe core legal rights are properly extended to individuals involved in crime. Chapter 4 willidentify the major problems inherent in this approach, and the repercussions that flow from thoseproblems. In particular, the fact that the current case law tends to leave the core legal rights ofthose individuals who are targeted by police for increased investigations and arrests withouteffective remedies will be examined, as will the current jurisprudence’s susceptibility to misusein times of moral panic. Moreover, the fact that the current exclusionary rule allows police tocontinue to use unconstitutional investigatory practices without fear of practical repercussionswill also be examined.Using the foregoing analysis as a foundation, Chapter 5 will attempt to articulate a newapproach to the interpretation and application of s. 24(2). This reformed exclusionarymethodology will argue for situating social context at the forefront of the s. 24(2) decisionmaking process, primarily to account for the practical role played by the core legal rights in thecurrent criminal prosecution process. In setting the stage for a reform of the Charter’s24exclusionary rule, the “original intentions” approach to constitutional interpretation will berefuted for the purposes of s. 24(2). Moreover, the exclusionary remedy’s proper place amongstconstitutional provisions such as ss. 1 and 33 will be established. The chapter will conclude bysetting out a framework for the progressive reinterpretation of s. 24(2). That framework will thenbe applied to the fact scenarios from several controversial Supreme Court of Canada decisionsregarding s. 24(2) — including both Feeney and L.B. — in an attempt to demonstrate how the newapproach might apply in practice.25Chapter 2. A History of Canadian Criminal Justice and its Relationship to s. 24(2)The Charter ‘s entrance onto the Canadian constitutional scene in the early 1 980s promptedCharter enthusiasts to predict the fundamental overhaul of the country’s criminal trial process.The newly created individual rights99 were promised to provide all citizens with access toeffective protections against procedural abuses perpetrated by the state’s investigatory branch.10°Optimism abounded in large part because the Charter also contained what appeared to be abroadly applicable enforcement section.101 Through the operation of this relatively uniquetool,’°2 rights violations perpetrated during the investigation and arrest process could beremedied through recourse to an expansive set of constitutionally mandated remedies, includingthe potential exclusion of illegally obtained evidence. The Charter was thus hailed as the key tothe alteration of certain repressive elements of the criminal investigation, arrest and prosecutionprocesses that had endured in Canada since before confederation. However, explanations of thenature of those repressive elements did not figure prominently in the publicity leading up toApril 17, 1982. Although support for the Charter was high, it was often based on imprecisepolling questions designed to elicit the responses they eventually received.’03 Canadians wereclearly aware that the Charter would provide them with enhanced protections; exactly what theyneeded protection from was far less clear.More than a quarter of a century has now passed since the Charter ‘s inception. Theremedies available in s. 24 — amongst which the exclusion of unconstitutionally obtainedevidence has emerged as the most significant — have since become controversial among membersof the public and the legal profession alike. The question now is not whether the Charter and s.24(2) lead to changes in the Canadian criminal justice process, but rather whether those changesconstitute anything more than procedural alterations that serve to mainly to legitimize the legalstatus quo and the broader social structure in which the criminal justice system exists.Legitimization in this regard refers primarily to the use of law in order to reinforce the perceptionthat existing social structures developed as a matter of historical necessity rather than becauseSee Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: ThompsonEducational Publishing, Inc., 1994) at 179 [Mandel, Legalization] (the rights were not “new” in the true sense of theword, with most provisions deriving their origins from the Magna Carta (1215) or the common law).100See Kent Roach, Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice (Toronto:University of Toronto Press, 1999) at 3 [Roach, Due Process].101See Charter, supra note 36, s. 24.102The Bills of Rights of most commonwealth countries do not contain explicit remedial clauses. See e.g. TheConstitution of the United States of America, U.S. Const. amend. I - X; and The New Zealand Bill of Rights Act(1990), Public Act 1990 No. 109.103See Mandel, Legalization, supra note 99, at 27.26those in positions of power made specific choices to serve their interest. As Allan Hutchinsonhas argued:[m]ore than most languages, law has managed to suppress the contingent character of socialhistory. By institutionalizing an entrenched set of social values, legal discourse has succeeded, atleast partially, to contain the dynamism of history-making and, in the process, has persuadedpeople of the “naturalness” and “necessity” of current social arrangements. However, while theintellectual categories and rhetorical tropes of legal discourse do provide a superficially coherentimage of the world, it is so fragile and shallow that it can offer no real repose.104In keeping with this observation, the study of s. 24(2) must begin by examining the socio-legalcontext into which the Charter ‘s exclusionary mechanism — and the core legal rights to which itrelates — was inserted. Rather than assuming the pre-Charter criminal justice system was nearlyperfect, requiring only the official addition of constitutionalized procedural protections toachieve total refinement, it is necessary to analyze the history and nature of that system in orderto more accurately understand its overarching purpose and its practical effect on Canadians.The critical examination into the nature of Canada’s criminal justice system will begin byarguing that the system does not function solely to prevent crime or to punish criminal offenders.Instead, one of the system’s central foundational purposes is to maintain the larger socialstructure, which is replete with economic, racial and regional inequalities. The criminal justicesystem, like many other social institutions, is designed to provide a degree of societal order thatwould be impossible to achieve in its absence. More specifically, society requires a set of rulesthat is at least theoretically applicable in a global sense if it is to continue functioning in aconsistent manner. Some form of enforcement mechanism designed to ensure at least a minimaldegree of compliance must in turn back these rules. Such a system of rules and enforcementmechanisms necessarily takes on a substantial measure of rigidity, as overly fluid rules areincapable of establishing the necessary social consistency. This creates significant issues as thesocial order has evolved in a manner that has benefited certain groups at the expense of others.As such, insofar as the criminal justice system serves to maintain existing social conditions, itlikewise functions to maintain existing social inequalities.In this criminal justice context, the Charter ‘s core legal rights are vulnerable tointerpretations that would reduce their practical effectiveness, rendering them mere means oflegitimization rather than true mechanisms through which individual rights are protected. Insubstantiating this argument, several notable historical criticisms of criminal justice will beexamined, with particular emphasis placed on the theories of legal scholars writing in the104Hutchinson, Dwelling, supra note 98, at 21.27Marxist tradition. These critiques will then be linked to the Canadian context through anexamination of the historical origins of Canada’s criminal justice system. This examination willitself be based on an analysis of the criminal law that existed in the United Kingdom during the17thand18thcenturies, which was characterized by a system originally structured to mostefficiently maintain the societal status quo. It was this system that was ultimately received inCanada in the mid-i 70Os, thereby forming the basis of criminal justice in Canada today.With the historical context of criminal justice as a reference point, it is possible to moreeffectively assess and criticize the current functioning of the Canadian criminal justice system ingeneral, and Canadian policing in particular. Policing is of direct relevance to s. 24(2) as theactions taken by individual officers while engaged in the process of securing evidence ofcriminal wrongdoing directly cause violations of the core legal rights, thereby triggering theoperation of s. 24(2). It is therefore necessary to examine how officers approach the task ofpolicing, and how their approach affects individuals living in Canadian society. This willdemonstrate that certain social groups are over-policed in some ways while under-policed inothers. An attempt will then be made to ascertain why disproportional forms of policing occur.Part of the answer lies in the existing police occupational culture, which can emphasize an “endsjustify the means” style of law enforcement. This in turn leads to institutional resistance towardCharter rulings, and to negative police practices such as perjury and racial profiling.This analysis will demonstrate that Canada’s inherited system of criminal justice is basedon one that was originally designed to maintain the social and legal status quo, which were at thetime characterized by a radically unequal distribution of wealth and social power. The currentCanadian criminal justice system has remained true to its roots in that it continues to have adecidedly unequal impact upon economically and racially marginalized Canadians. This situationis directly relevant to s. 24(2) as it means that certain type of individuals in certain types ofcircumstances will be disproportionately subjected to police investigations, an in turn,disproportionately exposed to violations of their core legal rights. These social realities must betaken into account when assessing the Supreme Court of Canada’s treatment of s. 24(2), and alsowhen attempting to structure a cogent reform of Canada’s exclusionary rule.2.1. Pinning the tail on a donkey: The purpose of Canada’s criminal justice systemCriminal justice in Canada is an undoubtedly complex phenomenon. The public, however, tendsto push these complexities to the periphery by assuming that the criminal justice system’spurpose is to provide them with protection from crime and to punish criminal offenders. David28Paciocco, a noted proponent of crime control in the s. 24(2) context, notes that “[w]e claim thatours is a ‘reductivist’ system — in other words, a system designed to reduce the amount of crime.Without distinguishing between the various kinds of offences, we promise to reduce crime by thesentences we impose As the tone of Paciocco’s comment indicates, the system has largelyfailed to live up to this promise. Indeed, a brief examination of the relevant statistics indicatesthat the system neither functions to reduce the overall amount of crime in society, nor to punishcriminal as severely as possible.In the 2006/2007 statistical period, adult criminal courts in Canada processed 372,084cases involving 1,079,062 charges, numbers that were virtually identical to those recorded duringthe previous statistical year.’°6 Canadian youth courts processed an additional 56,463 casesinvolving 179,873 charges in 2006/2007, reflecting no noticeable change from the preceding datacollection period.’07 Although the national crime rate has decreased by approximately 30% sincereaching its all-time apex in 1991, the rate is still nearly three times higher than it was in1962.108Furthermore, there is substantial disagreement regarding whether or not the ebbs and flows in theoverall detected crime rate can be conclusively linked to the effectiveness of various criminaljustice policies, or even whether the crime rate is itself truly reflective of actual levels of criminalactivity in Canada.’°9Regardless of these debates, one thing is certain: crime continues to occur.The 428,574 cases involving 1,258,935 charges that passed through the system in 2006/2007 didso in spite of significant conservative party rhetoric about using the criminal justice system to“tackle” crime.110 As presently structured, it is clear that the system is incapable of satisfactorilypreventing crime. This is not to say that the criminal justice system has no deterrent valuewhatsoever. Criminal law undoubtedly does prevent the occurrence of some forms of crime.What it does not do, however, is register any noticeable reduction in the types of crime that itundoubtedly focuses on: those that occur in less privileged and marginalized neighbourhoods.The fact that this has not led directly to a radical overhaul of the system suggests that the system105Paciocco, Murder, supra note 59, at 22.106See Juristat: Canadian Centre for Justice Statistics, Adult Criminal Court Statistics, 2006/2007, vol. 28, no. 5, byMichael Marth (Ottawa: Statistics Canada, 2008) at 2 [Juristat, Adult Crime, 2006/2007].107See Juristat: Canadian Centre for Justice Statistics, Youth Court Statistics, 2006/2007, vol. 28, no. 4, by JenniferThomas (Ottawa: Statistics Canada, 2008) at 2 [Juristat, Youth Court, 2006/2007j.108See Juristat: Canadian Centre for Justice Statistics, Canadian Crime Statistics, 2006, vol. 27, no. 5, by WarrenSilver (Ottawa: Statistics Canada, 2007) at 2 [Juristat, Canadian Crime, 2006].109See e.g. Valerie Pottie Bunge, Holly Johnson & Thiemo A. Baldé, Exploring Crime Patterns in Canada (Ottawa,Statistics Canada, 2005) at 45-54 [Bunge, Johnson & Baldé].110See e.g. Conservative Party of Canada, Stand Up For Canada: Federal ElectionPlatform 2006, online:<>, at 21-28.29is not principally focused on reducing offences in order to create “safe, healthy communities” forall Canadians.”The relevant statistics also indicate that the criminal justice system is not set up to ensureextreme punishments are doled out to individuals convicted of crimes. The system neither handsout such punishments, nor does it appear inclined to do so. Indeed, Paciocco argues that thesystem’s current “credibility crisis” is predominantly caused by the fact that its fails to punishoffenders adequately. On this point, he observes:[i]n Canada, people are getting away with murder. They are getting away, as well, with countlessother atrocities. Every day in the courtrooms of this country, decent people, victims of crimes ofbrutality and wanton destruction, have to endure the spectacle of their tormentors swaggering outof court, acquitted of crimes they committed. Canadians thumb newspapers with disgust, readingyet again about another charge thrown out, or another sentence that does not reflect the sufferingthat the self-indulgent or pointless acts of the offender have caused.’12The relevant statistics clearly support the notion that criminal sentencing in Canada is anythingbut purely punitive in nature. During 2004/2005, less than 70% of individuals under thesupervision of a correctional service agency were physically in custody, and less than 70% ofthose were actually serving court-issued sentences. The rest were in custody on remand whileawaiting trial, or were subject to some other form of non-sentenced custody.”3Over the sameperiod of time, 41% of those imprisoned offenders who were serving court-imposed sentencesspent 29 days or less in custody, while 68% of all offenders spent less than 90 days in acorrectional institution114The reality of sentencing in Canada has led to suggestions that protection of thecommunity through the reduction of crime is not even a plausibly attainable goal for the criminaljustice system as it is presently constituted. As Paciocco has argued:[s]entencing offenders, particularly to incarceration, will not reduce crime rates for most offences.Rehabilitation is largely a myth. Specific deterrence does not work. As a general strategy,incapacitation is neither feasible nor effective. And it is only blind faith that supports ourcontention that punishing offenders can intimidate others into not committing sexual offences,drug offences, and crimes of15As this comment reflects, purely draconian notions of punishment do not drive currentsentencing practices. That is certainly not to suggest that they should be. Nor is this factadvanced in an attempt to prove that Canada’s system of penal punishment is anything other than“Ibid at22.112Paciocco, Murder, supra note 59, at 4.“See Juristat: Canadian Centre for Justice Statistics, Adult Correctional Services in Canada 2004/2005, vol. 26,no. 5, by Karen Beattie (Ottawa: Statistics Canada, 2006) at 10 [Juristat, Adult Corrections, 2004/2005].“4mid“Paciocco, Murder, supra note 59, at 34.30deeply repressive in nature.116 To the contrary, increasing the severity of criminal sanctionsgenerally bears no correlation to decreases in crime rates or actual levels of crime in society. Inreality, more severe punishments serve to increase the negative effects that the criminal justicesystem already has on the social groups to whom it is disproportionately applied.One need look no further than the system’s impact on Canada’s Aboriginal population forevidence of this trend. Despite comprising only 3% of the adult population in 2004/2005,Aboriginals “[aiccounted for 22% of admissions to provincial/territorial sentenced custody, 17%of admissions to federal custody, 17% of admissions to remand, 17% of probation admissionsand 19% of admissions to conditional sentence.”7In addition to being over-represented in newadmissions to penal custody, Aboriginals are also severely over-representation in existing adultprison populations throughout the country. For example, in Alberta, Aboriginals represent 4% ofthe total population and 38% of the prison population. In Ontario, they comprise 1% of theoverall adult population, but 9% of the prison population. In Saskatchewan the numbers are 10%versus 77%, while in Manitoba they are 11% versus 70%. In British Columbia, Aboriginalsaccount for only 4% of the total population, and 20% of the prison population.”8These numbersindicate that Aboriginals across Canada are undeniably subjected to harsh punishments for theircriminal offences. Despite this reality, there is no indication that these criminal sanctions haveworked to reduce the crime that occurs in their communities. Indeed, the statistics indicate thatAboriginal people:[w]ere more likely to have returned to correctional supervision in the two-year period followingrelease in 2002/2003 compared to non-Aboriginal people in all jurisdictions where data wereavailable. Almost half of all Aboriginal adults were re-involved in correctional services within twoyears following release (45%) compared to less than one-third of non-Aboriginal adults in thesame time period (29%). Re-involvement rates for Aboriginal people were highest in Nova Scotia(47%), closely followed by Saskatchewan (45%), while 40% of Aboriginal people released fromcorrectional supervision in New Brunswick returned within two years.119As a result, one of the segments of the Canadian population that is currently subjected to theharsh form of punishment in a clearly disproportionate manner nonetheless continues to commitcrimes, thereby causing those individuals to reenter the punishment system in a cyclical fashion.116The criminal justice system’s disproportionate application to Canada’s most disenfranchised individuals issignificantly exacerbated by the fact that the system appears to be developing in an even more overtly repressivedirection. One particularly disturbing trend is the increase in individuals housed in remand custody. In 2004/2005,there were 12,300 prisoners in federal custody, 9,800 in provincial facilities, and 9,600 in various remand centres.Although the number of convicted persons serving sentences in provincial or federal institutions has declined since1995/1996, the number of individuals housed in remand centres has skyrocketed. See Juristat, Adult Corrections,2004/2005, supra note 113, at 4.117Ibid at 16.119Ibid at 13.31The Canadian criminal justice system’s treatment of Aboriginal people provides strongevidence that handing out increasingly harsh punishments does little to prevent crime, indicatingthat crime reduction is attainable neither through specific nor general deterrence. Rather,increasing the severity of sentences simply increases the repressive effects that the system has onpopulations that are already socially marginalized. The existence of these issues, then, leads oneto question what the current justice system is actually structured to achieve. Because theadministration of Canadian justice is not set up solely to prevent crime, nor to severely punishindividuals who are convicted of offences, it is necessary to ascertain what other purposes mightbe driving the investigation, arrest, and prosecution processes as they exist throughout thecountry. A logical place to begin this search is by referencing several influential historicaltreatments of the subject, particularly those that seek to uncover the true nature of criminal lawsand penal sanctions. These examinations strongly indicate that criminal justice has long beengeared toward the repression and oppression of the underprivileged and disadvantaged segmentsof the population.2.2. Marxist conceptions of criminal justiceOne possible alternative purpose for the criminal justice system is that it is intended to assist inmaintaining the social status quo. Such an argument can be traced back to the writings of KarlMarx, whose work is of particular relevance in this context. Unlike other influential authors whoacknowledge the type of crimes that occur in society and then attempt to explain why suchpatterns exist,’20 Marx’s analysis — and the genre of conflict criminology that it inspired —essentially reverse this methodology, looking first at the structural composition of society, andthen examining how those structures relate to and produce the crime that occurs within them.This methodology is particularly applicable to the critical assessment of the Canadian criminaljustice as it looks beyond the official crime statistics, attempting to explain why those statisticsexist rather than assuming they are the inevitable result of the inherent criminal tendencies of thepopulation.Marx’s recorded thoughts on crime and criminal justice are predominately expressed inhis early works. The relevant tracts indicate that Marx’s analysis of law and crime focused on thenotion that “crime” is what society’s ruling class says it is, as opposed to being only those acts120See e.g. Cesare Beccaria, Essay on Crimes and Punishments (Edinburgh: J. Donaldson, 1788); John Locke, TwoTreatises ofGovernment (New Haven, CT: Yale University Press, 2003); and Jeremy Bentham, The Rationale ofPunishment (London: C. & W. Reynell, 1830).32that are inherently wrong in and of themselves. In a particular discussion concerning this issue,Marx argued that:[v]iolations of the law are generally the offspring of economical agencies beyond the control ofthe legislator, but ... it depends to some degree on official society to stamp certain violations of itsrules as crime or as transgressions only. This difference in nomenclature, so far from beingindifferent, decides on the fate of thousands of men, and the moral tone of society. Law itself maynot only punish crime, but improvise it, and the law of professional lawyers is very apt to work inthis direction.’2’In an article written for the New York Tribune, Marx linked the production of crime to thebourgeois segment of society, writing that “[i]f crimes observed on a scale thus show, in theiramount and their classification, the regularity of physical phenomena ... is there not a necessityfor deeply reflecting upon an alternation of the system that breeds these crimes, instead ofglorifying the hangman who executes a lot of criminals to make room only for the supply of newones .122As these brief examples show, Marx’s early works contend that in societies stratifiedon the basis of class, the ruling elite and the systems of law they invoke to preserve and enhancethose stratifications, play a direct role in both the production of crime and the creation ofcriminals.Despite these significant contributions, and regardless of the theories that were laterfounded upon them, Marx simply did not fully develop his theories of law or criminal justice,instead focusing on the role of class and economics in the development of society. According toRobert Fine:Marxist theory of law remains relatively undeveloped in comparison with Marxist critiques ofpolitical economy. One reason is that Marx himself never returned to the project he set himself inhis youth: to complement his critique of political economy with a critique of jurisprudencethere is no possibility of discovering a theory of law and legal relations ready-made in Marx’swork.’23As a result, resort to Marx’s actual writings is of limited utility when attempting to conclusivelyascertain the purposes of modern systems of criminal justice. Later Marxist conceptions of law ingeneral and criminal law in particular are thus largely composed of subsequent authors’extrapolations on the relevant aspects of Marx’s other major political and philosophical works.The first wave of legal scholars writing in the Marxist tradition further impugned therepression and class bias inherent in modern criminal justice systems. In so doing, the121Karl Marx, Ireland and the Irish Question (Moscow: Progress Publishers, 1975) 92-93. See also Paul Phillips,Marx and Engels on Law and Laws (Oxford: Martin Robertson, 1980) at 167.122Karl Marx, “Capital Punishment” in James Ledbetter, ed., Dispatches for the New York Tribune: SelectedJournalism ofKarl Marx (Toronto: Penguin Group (Canada), 2007) 119 at 123.123Robert Fine, “Marxism and the Social Theory of Law” in Reza Banakar & Max Travers, eds., An Introduction tothe Law and Social Theory (Portland: Hart Publishing, 2002) 102 [emphasis in original, footnotes omitted].33argumentative focus shifted from the simple notion of bourgeois crime creation to the idea thatthe ruling elite used the criminal law to strengthen and enhance their grip on the bulk of society’spower and property. This development is particularly evident in the writing of EvgenyPashukanis, whose active Marxism and “anti-law” theorizing made him an enemy of JosephStalin and the Soviet regime, eventually leading to his victimization and murder during one ofthe many “purges” that infamously occurred in the Soviet Union throughout the 1930s.’24 Priorto his death, Pashukanis was instrumental in developing the embryonic Marxist account ofcriminal justice.Pashukanis provides the context for his overall hypothesis regarding the interplaybetween criminal law and social class by observing that of all the various juridical areas andsubject matters, it is the criminal law that has the most palpable and direct effect on the everydayactions of the individual.’25 For Pashukanis, this reality becomes problematic as societiestransmute into forms characterized by relatively stable class stratifications. When thismetamorphosis occurs, the criminal law becomes a tool utilized by the powerful social strata toperpetuate and intensify their struggle against the weaker elements of society.’26 On this point, hewrites that:[tjhe dissolution of natural economy and the increased exploitation of the peasants which resulted,the evolution of trade and the organisation of the state based on rank and class confront criminaljustice with entirely new problems. Criminal justice in this epoch is no longer simply a means forthose in power to fill their coffers, but is a means of merciless and relentless suppressionPashukanis further observes that the criminal law is “[m]erely an adjunct of the investigative andpolice apparatus ...“, and argues that “[c]riminal justice in the bourgeois state is organised classterror, which differs only in degree from the so-called emergency measures taken in civilwar.”128 Together, then, Pashukanis views the police, the criminal law and the penal system ascomprising a formidable weapon that is routinely employed by the socially and economicallyprivileged segments of society in order to secure and defend their positions of relative poweragainst those who would wrest portions of that privilege for themselves.As these theories indicate, systems of criminal justice have been weighted against therelatively powerless segments of the population throughout history. Marx’s limited discussions124Peter H. Solomon, Jr., Soviet Criminal Justice Under Stalin (Cambridge: Cambridge University Press, 1996) at194.125Evgeny B. Pashukanis, The General Theory ofLaw and Marxism (New Brunswick, NJ: Transaction Publishers,2002) at 167.126Ibid at 173.127mid128Ibid34of crime and law introduced the idea that society’s power class created criminal justice systemswith a view to defining crime in whatever manner was most beneficial to their interests.Pashukanis furthered this argument by positing that the social and economic elite used criminaljustice as a weapon to sustain and expand their grip on property and power while waging alegalized war on the numerically superior underclasses. Historically then, one of the deeplyrooted purposes of criminal justice has been to ensure that the divisions of social class and powerthat have developed over the centuries are satisfactorily maintained. Rather than currentlyexisting as the expressed intention of society’s dominant groups, the criminal justice system’stendency to preserve these social injustices arose through an evolutionary process. Because thesystem itself is highly resistant to change, it works subconsciously to maintain its owncompositional roots, including those negative aspects that developed centuries ago. Thishistorical reality is routinely overlooked in contemporary discussions pertaining to individualrights in the criminal law context.2.3. Not in my backyard: Repressing the repressiveness of Canada’s criminal justice systemPopular discussions of the Canadian criminal justice system do not often broach the subject ofthe system’s historical inequalities. To the contrary, many judges, lawyers and mainstream legalacademics credit the Charter with revolutionizing and equalizing a Canadian criminal justicesystem that was for the most part just prior to 1982. During a commemoration of the Charter ‘s10thanniversary, Lamer C.J.C. pronounced that “[tlhe Charter has put Canada on the top of thelist of countries watched and emulated by others. It has made the Canadian system ofjustice theflagship of the Commonwealth, and the Commonwealth countries are now looking more andmore to Canada for guidance and inspiration.”29At the same conference, former Charter skepticJoel Pink described the document’s effect on the criminal justice system in the following terms:[ajithough the common law established some fundamental principles to protect an accused, theCharter has adopted some principles, expanded others and created new rights. The protectionsgained have been both procedural and substantive ... During this first decade of implementation ofthe Charter, Canadian courts have diligently advanced the rights therein and have used old andnew remedies to protect those rights. The Supreme Court has led this quiet revolution by taking aliberal and purposive approach to Charter interpretation, although in recent decisions, there issome evidence of the pendulum swinging to a much more conservative approach.’3°The early consensus, then, was that the Canadian courts — especially the Supreme Court ofCanada — had done much to increase the safeguards curtailing the arbitrary and improper129The Honourable Antonio Lamer, “Opening Remarks” in Géreald-A. Beaudoin, ed., The Charter: Ten Years Later(Cowansville, QC: Les Editions Yvon Blais Inc., 1992) 9 at 13.130Joel E. Pink, “The Charter and Criminal Justice: Ten Years Later” in Géreald-A. Beaudoin, ed., The Charter: TenYears Later (Cowansville, QC: Les Editions Yvon Blais Inc., 1992) 99 at 100.35exercise of the substantial powers vested in the various appendages of the criminal justicesystem.Lamer C.J.’s remarks at the 1992 Canadian Bar association conference were not his onlyextrajudicial extolments of the equalizing effect of the Charter. The former Chief Justice wouldeventually become recognized as perhaps the most celebrated and enthusiastic of the Charter ‘sproponents. Shortly before the10thanniversary, Lamer C.J. was quoting as suggesting that “[t]heintroduction of the Charter of Rights and Freedoms a decade ago, on April 17, 1982, has beennothing less than a revolution on the scale of the introduction of the metric system, the greatmedical discoveries of Louis Pasteur, and the invention of penicillin and the laser .“.‘‘In aninterview given to Stephen Bindman on the document’s15thanniversary, Lamer C.J. famouslyopined that “[i]f the Charter were explained to the people and the people realized what’shappening in other countries, they would then say, ‘Thank God for the Charter’ If LamerC.J.’s comments are accepted as accurately relaying the entirety of the Charter story, one wouldindeed be hard pressed to imagine that the system in which that document exists is based in parton significant historical injustices.Despite the rhetoric regarding the egalitarian nature of the Charter and its beneficialeffects on Canadian criminal justice, our system’s foundational roots should not be overlooked.In this sense, it is not particularly difficult to associate Canada’s current justice system with the“merciless and relentless” repression that characterized the forms of criminal justice analyzed bythe Marxist theorists. In fact, historical analysis has extensively documented the repressive,class-based elements of the English criminal justice system, particularly as it existed in the 18thand19thcenturies. This is particularly relevant in the Canadian context, as this English system isthe very system of criminal justice that Canada effectively inherited in the mid 1 700s. In thisway, the issues identified by the Marxists take on a direct relevance to Canada and its currentmethods of criminal justice and social control.As legal historian Douglas Hay hypothesizes, the English justice system existed primarilyas a means through which the propertied class legitimized radical imbalances in wealth andpower. Hay argues that property took on quasi-religious importance in18t1icentury England,stating that “[o]nce property had been officially deified, it became the measure of all things.131Jeff Sallot, “Top court becomes supreme player” The Globe and Mail (6 April 1992) Al.132Stephen Bindman, “15 years later, chiefjustice still a fan of the charter” The Edmonton Journal (20 April 1997),F2.36Even human life was weighed in the scales of wealth and status • No more than 3% of theEnglish population controlled the application of criminal law, a jurisprudence that effectively“[d]efined and maintained the bounds of power and wealth In this context, the wealthyused their criminal law as an ideological shield to protect themselves and their interests from thevast numerical superiority the underciasses. As Hay explains, “[t]he criminal law was extremelyimportant in ensuring ... that ‘opinion’ prevailed over ‘physical strength’. The opinion was thatof the ruling class; the law was one of their chief ideological instruments. It combined ... terrorwith ... discretion ... and used both to mould the consciousness by which the many submittedto the few.”35Hay contends that the English criminal justice system performed its function oflegitimization by employing three distinct but interrelated tactics: (i) majesty; (ii) justice; and(iii) mercy.’36 With regard to majesty, Hay refers to the notion that the law garnered respect foritself and thus the social status quo by performing its everyday functions as rituals replete withsufficiently befuddling pomp and circumstance. As Hay observes, “[c]oupled with wealth, aconsidered use of imagery, eloquent speech, and the power of death, the antics surrounding thetwice-yearly visits of the high-court judges had considerable psychic force.”137 When they werenot being dizzied by the regalia of the judges, the spectacle of the proceedings, or the terror of apublic execution, the general populace was effectively placated by carefully crafteddemonstrations intended to prove the law was just, and that it was indeed equally applicable toall individuals, regardless of their class, property, or degree of social power.138To accomplish this, the18thcentury English criminal justice system emphasized itsrigorous adherence to the rules of procedure, often allowing well-founded prosecutions to failsimply because of minor irregularities, such as an incorrect date on an indictment.’39In this way,the underciasses came to view the criminal law as existing independently from its propertiedcreators. On this point, Hay writes that:[t]he punctilious attention to forms, the dispassionate and legalistic exchanges between counseland the judge, argued that those administering and using the laws submitted to its rules. The lawthereby became something more than the creature of the ruling class — it became a power with itsown claims, higher than those of prosecutor, lawyers and even the great scarlet robed judge133Douglas Hay, “Property, Authority and the Criminal Law” in Piers Beime & Richard Quinney, eds., Marxismand Law (New York: John Wiley & Sons, 1982) 103 at 104.134IbicL at 128.135Ibid at 108.‘36Ibid137138Ibid. at 111.‘391b1d. at 112.37himself ... When the ruling class acquitted men on technicalities they helped instil a belief in thedisembodied justice of the law in the minds of all those who watched. In short, its veryinefficiency, its absurd formalism, was part of its strength as ideology.140The idea that the law applied equally to all was heightened by the purposeful execution of theoccasional member of the upper class. As Hay states, “[ut was part of the lore of politics that inEngland social class did not preserve a man from even the extreme sanction of death. This wasnot, of course, true. But the impression made by the execution of a man of property or positionwas very deep.”4’Use of such tactics allowed the English power elite to successfully “[e]xtendthat communal sanction to a criminal law that was nine-tenths concerned with upholding aradical division of property.”42The final method through which the18thcentury English system of criminal law wasutilized by the powerful as ideology involved accentuating notions of its mercy. The main devicein this regard was the pardon. It was used to mute the severity of penal statutes that had graduallyincreased the number of capital offences by over 400% between 1688 and 1820, the majority ofwhich were associated with crimes against property.’43The pardon allowed the system to at oncelegitimize itself and demonstrate the inherent benevolence of the wealthy and the powerful. AsHay notes:[t]he pardon is important because it often put the principal instrument of legal terror — the gallows— directly in the hands of those who held power. In this it was simply the clearest example of theprevailing custom at all levels of criminal justice. Here was the peculiar genius of the law. Itallowed the rulers of England to make the courts a selective instrument of class justice, yetsimultaneously to proclaim the law’s incorruptible impartiality, and absolute determinacy. Theirpolitical and social power was reinforced daily by bonds of obligation on one side andcondescension on the other, as prosecutors, gentlemen and peers decided to invoke the law oragreed to how mercy.’44Hay concludes that the employment of these rhetorical devices allowed the English criminaljustice system to be perceived as something it was not. Rather than being majestic, just andmerciful, “[tjhe private manipulation of the law by the wealthy and powerful was in truth aruling-class conspiracy, in the most exact meaning of theWhile19thcentury England enjoyed a reform of the justice system as it had existed in the18thcentury, the changes were not deeply rooted to the degree that real alterations occurred. Infact, the reforms adhered closely to the class-based interests of those who controlled the‘‘ibidat 113.143Ibid. at 103.‘44IbicL at 120.145Ibid. at 122.38development of the criminal law. As Hay notes, calls for the abolition of the death penalty werelargely the product of a growing middle class, whose “[plroperty was the prey of thievesundeterred by terror.”146 Hay therefore concludes that:[a] ruling class organizes its power in the state. The sanction of the state is force, but it is force thatis legitimized, however imperfectly, and therefore the state deals also in ideologies. Loyalties donot grow simply in complex societies: they are twisted, invoked and often consciously created.Eighteenth-century England was not a free market of patronage relations. It was a society with abloody penal code, an astute ruling class who manipulated it to their advantage, and a peopleschooled in the lessons of Justice, Terror, and Mercy.147Thus, although the exact form of the system may have changed, the substance of the criminal lawremained largely the same.Hay’s discussion of the English criminal justice of the18thand centuries is ofparticular relevance to contemporary Canada as the substance of that system forms the bedrockof the current Canadian criminal justice system. As Peter Hogg notes, Canada initially receivedthe bulk of its system of law through the reception of English law — and to a lesser extent Frenchlaw — by the colonies of British North America.148 Hogg points out that the English common lawrules of reception distinguished between settled and conquered colonies:[i]n the case of a colony acquired by settlement, the settlers brought with them English law, andthis became the initial law of the colony. In the case of a colony acquired by conquest, the law ofthe conquered people continued in force, except to the extent necessary to establish and operatethe governmental institutions of British colonial rule. A colony acquired by cession (that is, bytransfer from another country) was treated as acquired by conquest.149The matter of reception was significantly complicated by French claims to specific regions ofBritish North America, which raised issues as to whether the area was properly treated as settled,conquered.’5°There are thus different dates of reception for different regions of Canada,meaning that the English and French laws received on those dates were at differing stages ofdevelopment.’5’Although the dates of reception and the law received by pre-confederation Canada werenot uniform, the eventual result was the imposition of the English legal tradition into theCanadian context. Although precise dates of reception are essentially impossible to ascertain,“[t]he courts which later had to identify the rules of English law which had been receivedselected the date of ‘the institution of a local legislature in the colony’ as the date of146Ibid. at 127.147Ibid at 129.148See Peter Hogg, Constitutional Law of Canada Student ecL 2006 (Scarborough, ON: Thomson Carswell, 2006)at 32-33.149Ibid. at 32.‘50IbicL151Ibid at 33-40.39reception.”52Using this method, it has been determined that in certain areas — such as the colonyof Nova Scotia — the first dates of reception fall as early as1758.153The dates of reception matterless as far as the common law was concerned, which was considered to exist uniformlythroughout the British Empire.’54 Thus, the form of law received in Canada was founded on thesystem described by Douglas Hay. As a result, the origins of Canadian criminal justice can betraced directly back to an century English legal system that was dominated by propertyinterests, and was skillfully manipulated to maintain the social status quo.2.4. Targeting the socially powerlessThe dubious origins of Canada’s current criminal justice system manifest themselves in themodern period in a number of important ways. Of particular significance is the fact that theadministration of Canadian justice is disproportionately applied to certain segments of theCanadian population. Officially recorded crime is endemic among society’s marginalized andrelatively powerless economic and racial groups. The relevant statistics indicate that anindividual’s socioeconomic status has a direct bearing on their likelihood of coming into directcontact with agents of the criminal justice system. As Michael Mandel notes, “{a]mong thosecharged with criminal offences we find a severe overrepresentation of the poorest and mostsocially powerless people in Canadian society, characterized by the lowest levels of occupationand the highest levels of unemployment.”55 Furthermore, the vast majority individualsvictimized by crime are also culled from society’s powerless social strata. On this point, Mandelobserves that “[tjhe social class effects [are not] as obvious as they might seem from the fact thatpeople charged with crime are overwhelmingly from the underclass or the working poor, becauseso are their vjctjms.”156 Similarly, Kent Roach observes that traditionally disadvantaged groupsare overrepresented in crime victimization statistics, noting that “Aboriginal people in Canada[are] ... overrepresented among both prisoners and victims of crime. Gays and lesbians and thedisabled ... were disproportionately victimized by some types of crime.”157 As a result, both theperpetrators and casualties of crime occupy the same economic and social sphere.What the official crime rates fail to conclusively prove, however, is that thesedisadvantaged groups are over-represented in criminal justice statistics only because they areat 34.‘53IbicL at 33, n. 4.‘54IbicL at 34-35.155Mandel, Legalization, supra note 99, at 181.156Ibid at 184.157Roach, Due Process, supra note 100, at 222.40inherently more criminogenic than their more socially powerful counterparts. In fact, there is noreliable evidence that this is the case. Rather, this overrepresentation occurs because the justicesystem is structured in such a way that it is more efficient at detecting certain forms of thecriminal activity engaged in by society’s underciasses than it is at detecting those same crimeswhen they are committed by members of more advantaged, less targeted segments of thepopulation. In this regard, Patricia Gray argues that “[sjocially marginalized groups arevulnerable to criminalization. What is ‘censured’ as crime in any society reflects not only itscultural and moral sensibilities, but also its political economy.”58 Similarly, criticalcriminologist William Chambliss posits that “[c]rime in the ghetto is a self-fulfilling prophesy.Because the police target the urban ghettos for intensive surveillance, it is the residents of theurban ghettos who appear over and over again in the revolving doors of jails, courts andprisons.”59 The criminalization of marginalized communities inevitably means that theindividuals who comprise those populations will have more first-hand experience with thecriminal justice system, meaning that they are more frequently investigated and more frequentlyarrested. As a result, members of these groups also have more first-hand experience withviolations of their core legal rights as such violations occur only during the investigation andarrest processes.The fact that underprivileged and socially marginalized groups are subjected to targetedpolicing does not mean that all of their criminal activities are policed to the same degree. Instead,the policing of these groups tends to focus on crimes that require relatively simple investigations,as well as those that can be substantiated by securing a limited amount of evidence. This meansthat officers tend to focus primarily on narcotics offences, firearms offences, and propertycrimes, all which can often be investigated with simple searches of a suspect’s person, andsubstantiated with a small amount of real evidence. Such investigations are not typically complexand thus efficiently produce criminal charges that can be substantiated in court. In discussing theinvestigation of drug offences, Chambliss points out that “[dirug arrests are among the easiest tomake, convictions not too difficult to obtain, and drug convictions often lead to the longestprison terms.”160 Essentially the same thing can be said for firearms offences. Police are eager topursue these types of investigations as: “[o]rganizations reward members whose behaviormaximizes gains and minimizes strains for the organization. In a class society, the powerless, the‘Patricia Gray, “Deconstructing the Delinquent as a Subject of Class and Cultural Power” (1997) 24 J.L. & Soc’y526 at 536 [Gray].159William J. Chambliss, Power, Politics & Crime (Boulder, Colorado: Westview Press, 1999) at 63 [Chambliss].160Ibid at 77.41poor, and those who fit the public stereotype of ‘the criminal’ are the human resources needed bylaw enforcement agencies to maximize gains and minimize strains.”6’In order to minimizeoperational strains, crimes that are more difficult to detect, investigate and prosecute, such assexual assault and domestic violence, remain as under-policed in socially disadvantagedneighbourhoods as they are throughout the rest of society.’62There are other reasons why modern criminal justice is disproportionately applicable tosociety’s marginalized segments. Sociologists and criminologists suggest that society’s powerfulclasses highlight purported increases in the frequency and severity of crime in order to drawattention away from other societal issues, including poverty, racial bias and gender inequality.Properly confronting these issues would require the institution of fundamental changes to currentsocial and economic arrangement. The individuals who benefit from these arrangementstherefore have little incentive in pursuing the amelioration of these problems as doing soessentially runs contrary to their interests. Instead, they attempt to focus the population’sattention on high crime rates, and then push for the over-policing of powerless groups in order toshow that something is being done to confront criminals. As Chambliss argues, the practice ofover-policing effectively creates the impression that earnest attempts are being made to combatcrime as:[a]rrest is organizationally effective only if the person arrested is relatively powerless. Arrests ofwhite male middle-class offenders ... are guaranteed to cause the organization and the arrestingofficers strain because people with political influence or money hire attorneys to defend them.Arrests of poor black men, however, result in nothing but gains for the organization and the officerbecause the cases are quickly processed through the courts, a guilty plea is obtained, and thesuspect is sentenced.163While this organizational effectiveness provides clear benefits to police forces and individualsinterested in appearing to be “tough on crime”, it also has obviously negative repercussions forthe individuals who are targeted for over-policing. Focusing the state’s arrest power on thosewho are least able to legally defend themselves creates a false impression of crime patterns andexaggerates the extent of criminal activity in certain areas. It also falsifies the impact of the corelegal rights as those rights only have effect if individuals invoke them during the investigationand arrest process, and later enforce them in their interactions with prosecutors and the courts.This usually requires the financial ability to acquire legal representation and to mount a defence,the very things that people who are over-policed are unable to do.161Ibid.162Janine Benedet & Isabel Grant, “Hearing the Sexual Assault Complaints of Women with Mental Disabilities:Evidentiary and Procedural Issues” (2007) 52 McGill L.J. 515 at 517.163Gray, supra note 158, at 536.42In further commenting on the practice of over-policing socially marginalized groups inthe United States, Chambliss argues that politicians use the general fear of crime to draw thepublic’s attention away from bona Jide social issues, the resolution of which would erode thetraditional hegemonic power bases. The public is easily distracted by this tactic as it appeals totheir individual interests. Out of control crime is something that could affect them, their families,and the individuals with whom they associate. They therefore have a vested interest in crime’scontrol and the repression and isolation of criminals. On this point, Chambliss contends thatcontrary to reality:[c]rime has been raised to the level of a national crisis by a coalition of interests ... including: (1)conservative politicians concerned primarily with repressing civil rights activism and politicaldissent; (2) the media, ever hungry to attract readers and viewers with issues that captivate theimagination and fears of the public; and (3) the law enforcement establishment, with an insatiableappetite for public funds and public approval.’TMChambliss argues that these groups have tirelessly produced propaganda designed to ingrain thefear of crime on the psyche of the American people, despite the fact that “[viery few Americansare the victims of crime and the vast majority feel that the neighbourhood where they themselveslive is safe.”65 The “ghettoization” of crime and the concomitant expansion of criminal justicehave “[nlot only siphoned scarce resources away from education, welfare, and other socialexpenditures. The Wars on Crime and Drugs has also led to the institutionalization of racism bydefining the crime problem as a problem of young black men and women.”166The creation of a moral panic surrounding crime and criminals has a disproportionatelynegative effect on the economically and racially marginalized segments of society. As Chamblissobserves, “[t]he public image of crime in the United States is not racially neutral. The media andthe general public see crime as acts committed by violent, psychopathic, young black males,even though serious crimes occur daily at corporate headquarters, in banks, and on WallStreet.”67 Such misinformation has negative consequences as the perpetuation of “[t]he myththat crime is out of control ... leads inevitably to the arrest and incarceration of the poor. SinceAfrican Americans are disproportionately poor in the United States the result is closely akin to‘ethnic cleansing.”68Similar to what Mandel has observed in the Canadian context, Chambliss suggests thatonce crime is satisfactorily publicized and sufficiently ghettoized, the people living in those164Chambliss, supra note 159, at 27-28.165Ibid at 28 [emphasis in original].167Ibid at 55.168Ibid.43ghettos become immediately over-policed, over-arrested and over-incarcerated. Police targetsuch areas because of the relative ease of arrests and the greater certainty of convictions, both ofwhich are important to the advancement of the individual officer’s career.169 Chambliss arguesthat when these social realities are acknowledged, the ideological claim of equal justice for all isreduced to a fallacy. This effect is further enhanced by the fact that “[t]he middle- and upper-classes’ [have the] ability to protect themselves from being closely scrutinized by the police.”70The theories advanced by Mandel and Chambliss indicate that administration ofcontemporary criminal justice is disproportionately applied to individuals belonging to relativelypowerless racial and economic groups. Rather than evolving as a matter of historical necessity,the selective application of criminal justice has occurred because politically and economicallypowerful groups have created moral panics over purportedly high and ever-increasing levels ofcrime. Instead of existing as true representations of societal conditions, these panics aredeveloped in order to deflect popular concern away from the widening gap between rich andpoor, and the continuing social and economic marginalization of minority groups. Thedisproportionate application of criminal justice to certain groups has a significant impact on thecore legal rights of the individuals who compose those groups, particularly when the practicescommonly employed by Canadian police are taken into account.2.5. The nature of Canadian policing171Within the context of a criminal justice system that is disproportionately applied to members ofcertain social groups, several aspects of the way in which the policing function is carried out inCanada are directly relevant to the practical impact of the Charter ‘s core legal rights, and thus inturn, to the interpretation and application of s. 24(2). First, the occupational subculture to whichpolice officers belong encourages the exhibition of negative attitudes towards the individualsbeing investigated, the rejection of external interference in the day-to-day operations of policeforces, and a general resistance to court rulings that enhance individual rights protections at theexpense of police powers. Together with the relative impossibility of establishing effective andimpartial supervision of individual officers in the field, the police occupational subculture leadsto the frequent taking of procedural and investigatory shortcuts at the expense of core legalrights, the ex post facto manipulation of testimonial evidence so that police misconduct is‘69Jbjd at 77.170Ibid171A version of this subsection has been accepted for publication. Hauschildt, Jordan, “Blinded by Faith: TheSupreme Court of Canada, s. 24(2) and the Presumption of Good Faith Police Conduct” (2009) Crim. L.Q.44satisfactorily shielded from external scrutiny, and ultimately the over- investigation of certainindividuals based on irrelevant and immutable personal characteristics. If s. 24(2) is to ensure thecore legal rights serve as more than the means of legitimizing a disproportionately applicablecriminal justice system, Canada’s exclusionary rule must take into account the manner in whichthe country’s streets, neighbourhoods and peoples are being policed.2.5.1. “It’s us against them”: The police woridviewPolice officers work in an environment characterized by a distinct occupational subculture.’72This subculture effectively creates an operational mentality amongst individual officers that hasthe potential to significantly affect how they perform their day-to-day policing duties. Accordingto criminologist Janet Chan, the concept of “police culture” refers to the “[l]ayer of informaloccupational norms and values operating under the apparently rigid hierarchical structure ofpolice organizations.”73Chan posits that the main features of the police culture include:[a] sense of mission about police work, an orientation towards action, a cynical or pessimisticperspective regarding the social environment, an attitude of constant suspicion, an isolated sociallife coupled with a strong code of solidarity with other police officers, political conservatism,racial prejudice, sexism, and a clear categorization of the public between the rough andrespectable. Among these characteristics, the so-called ‘siege mentality’ and ‘code of silence’ haveoften been linked with the concealment and proliferation of police misconduct.’74Although Chan’s research pertains mainly to police forces in Australia, Canadian scholars havealso noted the existence of police occupational subcultures, and have studied how they affect theinstitution of policing in this country. For example, lawyer and criminologist David MacAlisterhas examined the applicability of the concept in the Canadian context, and concludes that“[p]olice in Canada, as in other countries, exhibit a clear occupational subculture.”175The police are by no means the only profession to have a developed occupationalsubculture, and both Chan and MacAlister suggest that the police culture is neither entirely staticnor purely monolithic.’76 There is evidence, however, that although the police occupationalsubculture is not totally resistant to change, it does retain a degree of stability over time andacross physical borders. In this regard, Chan reports that the “fundamental culture” of policing issimilar from police force to police force, from region to region, and from country to country.172The existence of a police occupational culture has been challenged. See Robert Baich, “The Police Personality:Fact or Fiction?” (1972) 69 Journal of Criminal Law, Criminology & Political Science 106.‘°Janet Chan, Changing Police Culture: Policing in a Multicultural Society (Cambridge: Cambridge UniversityPress, 1997) at 43 [Chan].at 43-44 [footnotes omitted].175David MacAlister, “Canadian Police Subculture” in Stephen E. Nancoo, ed., Contemporary Issues in CanadianPolicing (Mississauga, ON: Canadian Educators’ Press, 2004) 157 at 158 [MacAlister].176Ibid at 160; Chan, supra note 172, at 44.45Indeed, criminologist Jayne Seagrave argues that aspects of the police culture prevalent in moreheavily researched countries such the United States, are also present in Canada. On this point,Seagrave observes that “[s]ubcultural analyses of police organizations have been done in theUnited States, England and, to a lesser extent, in Canada as a way to conceptualize andunderstand the activities of the police. Sociological studies of police work in Canada indicatesimilar patterns to those found in Britain and the US.”77The similarities in occupational subculture that exist across regional and territorialboundaries are facilitated by the similarity of the police function across those same boundaries.Policing as a profession is universally characterized by elements such as the significant personaldanger to which officers are exposed in the course of their employment, their position of relativeauthority vis-à-vis ordinary civilians, and their ability to exercise coercive force in the fulfillmentof their day-to-day employment responsibilities.’78Because these universal characteristics driveboth the creation and the content of the police occupational subculture, the subculture itself takeson a universality of its own and as such, is not limited to the specific historical or socialconditions that exist in a particular region or country.In addition to the commonality of police culture from country to country, numerousstudies have uncovered an unmistakably authoritarian nature common to both the policeoccupational culture and the way in which policing is actually carried out in society. In thisregard, policing is seen as reflective of — and responsive to — the needs and goals of society’sdominant classes. On this point, Canadian legal scholar Margaret Beare argues that:[t]he police are empowered to enforce the moral, political, economic, and social consensusdetermined by the legislative and criminal justice systems. Charged with a mission of imposingorder on chaos, and mythologizing themselves as the ‘thin blue line’ protecting the democraticconsensus of acceptable behaviour, from those who would seek to challenge it, it is unsurprisingthat police behaviour seems discriminatory to those who remain outside of the status quoBeare’ s contention, then, is that the police reproduce the concept of social society that has beenestablished by society’s powerful groups and classes. This concept serves to protect the interestsof these groups at the expense of other, less powerful individuals. Similarly, John F. Galliherobserves that in the United States:[m]uch of police behavior seems most easily explained if one considers that whenever there is aconflict of interests between the dominant classes in a society and less powerful groups, the police177Jayne Seagrave, Introduction to Policing in Canada (Scarborough, ON: Prentice-Hall Canada Inc., 1997) at 119[Seagrave] [references omitted].178Chan, supra note 172, at 45,Margaret Beare, “Steeped in Politics: The Ongoing History of Politics in Policing” in Margaret E. Beare &Tonita Murray, eds., Police & Government Relations: Who’s Calling the Shots? (Toronto: University of TorontoPress, 2007) 313 at 354.46protect the interests of the former and regulate the behavior of the latter. The police role attractsauthoritarian individuals and increases their authoritarianism once on the job. Perhaps this happensbecause of the demands made upon the police to suppress economic and racial minorities. Suchtasks are most attractive to the authoritarian personality and undoubtedly any of an officer’s initialdoubts about such activities are lessened by an increasingly authoritarian orientation.180The supposition is that in socially and economically stratified societies, the profession ofpolicing attracts authoritarian-minded individuals willing to protect the status quo. Theoccupational culture of policing in turn creates patterns of behaviour designed to reinforce theauthoritarian views of those attracted to the occupation, while at the same time facilitatingmethods of practice that allow those views to have a practical effect. As Galliher concludes,“[t]here is some evidence that police subcultures develop in a department both to legitimize andkeep secret suppression of economic and racial minorities.”8’Moreover, critical analysis of police culture commonly indicates that differences existbetween the subcultures that prevail at different hierarchical levels of the police bureaucracy.Chan and MacAlister point specifically to the distinction between “Street cop culture” and“management cop culture”, suggesting that the occupational characteristics operating amongstmembers of these groups differ substantially.’82 With regard to the latter group, Chan hasobserved that street cops commonly exhibit “ [c]ontempt for the criminal justice system, disdainfor the law and rejection of its application to the police, disregard for the truth, and abuse ofauthority’,,183Similarly, MacAlister notes that:[p]olice view the other components of the criminal justice system as inefficient, and often workingat cross-purposes to police. Judges are viewed as soft on crime. Defence lawyers are despised forvigorous cross examination of police witnesses and complainants. Correctional rehabilitationprograms are believed to coddle offenders. Law makers are criticized for liberal approaches tojustice issues. Even the police hierarchy is criticized for inefficiency and lack of support for policeon the street.184As the occupational subculture of the “street cop” plays the lead role in the majority of officersuspect interactions, it is this subculture that is most directly relevant to the propriety of policeinvestigatory conduct in the field.As the descriptions offered by Chan and MacAlister suggest, street cops possess negativeoccupational characteristics that have the potential to severely impair the ability of police to180John F. Galliher, “Explanations of Police Behavior: A Critical Review and Analysis” (1971)12 The SociologicalQuarterly 308 at 312-3 13.181Ibid at 313.182Chan, supra note 172, at 44; MacAlister, supra note 174, at 160-164 [references omitted]. See also John M.Jermier, et a!., “Organizational Subcultures in a Soft Bureaucracy: Resistance Behind the Myth and Facade of anOfficial Culture” (1991) 2 Organization Science 170.183Chan, ibid. at 46.184MacAlister, supra note 174, at 171.47investigate individuals fairly and impartially. The police tend to view themselves as the “last lineof defence” between a minimally civil society and a Hobbesian state of nature,’85 and thereforeview the people whom they police with intense suspicion and often outright disdain. Althoughthe police are undoubtedly subject to intense organizational scrutiny, the day-to-day actions ofindividual officers are not supervised in any meaningful way. This issue is rendered all the moresignificant as individual police officers cannot be realistically relied upon to satisfactorilyregulate one another.2.5.2. Policing in the penumbraThe overwhelming majority of police work occurs beyond external scrutiny, in an environmentthat is only realistically amenable to self-regulation. The practical nature of policing thereforesituates the majority of officer-accused interactions beyond the scope of any supervisory bodycapable of independent oversight. According to Janet Chan, the fact that police forces aretypically structured as organized bureaucracies does not lead to effective supervision ofindividual officers in the field. On this point, Chan observes that “[pJolice officers exerciseextremely wide discretion at the street level ... with little or no supervision.”86Moreover, as theHonorable Mr. Justice Warren Burger famously stated:[a]fter the passage of many years, and more than thirty years as a lawyer and a judge, I cannot tellyou who, under our existing law and institutions, will watch the watchman — the policeman — inthe sense of holding him individually accountable when he breaks one law in his effort to enforceanother.’87This means that only the direct participants — the arrester and the arrestee — are able to observeand report upon what occurs during the investigation and arrest process. In the majority of cases,police witnesses outnumber non-police observers, insuring that the officers’ version of eventswill enjoy a numerical advantage, and often at least some degree of corroboration.’88The lack ofindependent external observation ensures that all reviews of officer-accused interactionsultimately depend upon the various versions of events subsequently proffered by the directparticipants. This dependence becomes increasingly problematic when the opposing partiesrelate contradictory and irreconcilable conceptions of what actually occurred on a specificoccasion.185See Thomas Hobbes, “Leviathan” in Stevan M. Cahn, ed., Classics of Western Philosophy (Indianapolis: HackettPublishing Company, 1995) 475 at 490 (Hobbes positing that in the state of nature, the “[l]ife of man [is] solitary,poor, nasty, brutish, and short.”).186Chan, supra note 172, at 44.187Warren E. Burger, “Who Will Watch the Watchman?” (1964) 14 Am. U. L. Rev. 1 at 2.188See e.g. John Van Maanen, “The Boss: First Line Supervision in an American Police Agency” in M. Punch, ed.,Control in the Police Organization (Cambridge: M.I.T. Press, 1983) at 277.48There is reason to believe that as technological advances occur, some of the invisibility ofpolice actions in the field will be lessened, if not removed altogether. Advances such as readilyavailable handheld recording devices and in-dash cameras on patrol cars have helped revealsome of the details of officer-accused interactions. Indeed, Canadian scholars Richard V. Ericsonand Kevin D. Haggerty suggest that the nature of police work has led to increasing surveillancein recent times. On this point, the authors observe that:[t]here is probably no occupation as thoroughly scrutinized as the police. This surveillance arisesout of distrust, which is endemic in risk society. There is a belief within the criminal justicesystem itself that, given the opportunity, police officers will routinely avoid duty, make graveerrors, fabricate evidence, and generally operate according to the informal rules of theiroccupational culture rather than adhering to formal administrative or criminal law rules.189Despite increasing levels of surveillance, the majority of police investigatory actions still remainbeyond the purview of external scrutiny.There is considerable evidence that police engage in misconduct while operating in therelative security of their low-visibility work environment. As Chan explains, the lack ofindependent external supervision combines with the personalities of individual officers and theparticularities of the police occupational subculture in such a way that:[t]he reality of police work ... allows a great deal of room for individual officers’ discretion indecisions to stop, search or arrest suspects. Such discretion is often informed by stereotypes ofwhat constitutes ‘normality’ or ‘suspiciousness’. The occupational culture, therefore, condonesvarious forms of stereotyping, harassment or even violence against those who are seen to be‘rough’ or ‘disreputable’. The code of secrecy and solidarity among officers, an integral part ofthis culture, ensures that deviant practices are either covered up or successfully rationalized.’90The day-to-day operation of policing, then, involves largely invisible discretionary decisionsmade by officers who often hold prejudicial and discriminatory views. Other officers who eithershare the same views as the decision maker, or who are bound to defer to that officer’s decisionby virtue of the police occupational culture, are the actors who are in turn called upon toscrutinize this conduct. In these circumstances, the task of bringing police misconduct to light isa difficult one.James Stribopoulos argues that the low-visibility of police operations routinely leads tounjustified arrests. Stribopoulos has extensively examined arrest powers in Canada, payingspecific attention to the Supreme Court’s attempt to employ the Charter to regulate the police189 Richard V. Ericson & Kevin D. Haggerty, Policing the Risk Society (Toronto: University of Toronto Press, 1997)at 60 [Ericson & Haggerty].190Chan, supra note 172, at 44.49power of arrest.’9’He discusses the on-the-job difficulties experienced by individual officerswhen interpreting the judicially imposed “reasonable and probable grounds” standard, now aprerequisite to a lawful arrest. Stribopoulos acknowledges that when interpreting this vaguestandard, police officers sometimes commit well-intentioned errors, and sometimes engage inintentionally abusive arrests.192 With respect to the latter, he observes that:[w]hile Canadian courts assume that the “reasonable and probable grounds” standard provides aneffective safeguard against unjustified arrests, in reality, this vague standard may actuallycontribute to police error. In addition, there is a real risk that the police may periodically misuse oreven abuse their arrest powers. Unfortunately, in any system that vests individual police officerswith the authority to take suspects into custody, unjustified arrests are somewhat inevitable. Themain problem with the current Canadian regime is not an unusually high risk of unfounded arrests,but the low visibility of police arrest decisions.’93Stribopoulos attempts to limit the scope of abusive arrest practices by suggesting that only “somerogue officers” engage in such behaviour.’94 The reality of the situation, however, is that themajority of officer-accused interactions are unobservable by any independent source, and thusthe propriety of those interactions can only be presumed.Rather than simply presuming that police misconduct is limited to distinct pockets ofrogue officers, MacAlister challenges that “[t]he police subculture provides police officers withthe necessary ideology or mindset for corruption to arise and remain justified.”95 Similarly,Seagrave suggests that police misconduct is prevalent in Canada, and can be categorized underoverlapping headings: police misbehavior; police corruption; and police abuse of power.’96Regardless of how police improprieties are specifically defined, Seagrave argues that suchconduct has broad repercussions, stating that “[i}t is important to note that the fallout caused bypolice deviance extends beyond the department itself. It facilitates criminality, decreases lawenforcement, and reduces public confidence in the police, inhibiting citizen cooperation withcrime prevention measures.”97The work of these authors demonstrates that there is both the opportunity and theoccupational willingness for police to engage in significant professional misconduct, and evendirectly illegal behaviour. Because of the occupational subculture that exists within the police191See James Stribopoulos, “Unchecked Power: The Constitutional Regulation of Arrest Reconsidered” (2003) 48McGill L.J. 225 [Stribopoulos, “Power”]; and James Stribopoulos, “In Search of Dialogue: The Supreme Court,Police Powers and the Charter” (2005) 31 Queen’s L.J. 1 [Stribopoulos, “Dialogue”].192Stribopoulos, “Power”, ibid. at 244.193Ibid at 251.‘94Ibid at 245.MacAlister, supra note 174, at 184.196Seagrave, supra note 176, at 184-185.‘971b1d. at 185 [references omitted].50hierarchy, and because police work occurs in the relative absence of meaningful externalcriticism, misconduct is not only possible, it is prevalent. The frequency of police misconducthas a decidedly negative impact on the function of policing as well as on the core legal rights ofthose who are policed. Because the socially powerless are targeted by current police operationpractices, the most prevalent forms of police misconduct are capable of remaining invisibleprovided that they do not routinely impact upon the legitimate interests of the socially powerful.2.5.3. The police vs. the courts: Implementing “unfavourable” Charter rulingsThe relevant evidence indicates that in general, street cops exhibit an occupational resistance tothose Charter rulings that serve to increase civil liberties protections at the expense of policepowers. Although several commentators have concluded that the police do not actively attemptto circumvent court rulings pertaining to the rights of the accused,’98 others suggest that theiracceptance of such decisions is far more uniform at the official, managerial level of the policeoccupational culture than it is amongst the various “street cop” subcultures that exist in policeforces throughout the country. The street cop’s resistance to Charter rulings is of greatsignificance as these officers are ultimately responsible for the practical impact of the SupremeCourt’s civil liberties rulings. This resistance also serves to render the management culture’sacceptance of the decisions purely symbolic, as it is the street cops who retain the ability tonegate whatever degree to which there actually is managerial adherence to Charterdevelopments.The purported willingness of the police to implement the Supreme Court’s Charterrulings is often highlighted by proponents of the deterrence rationale for the exclusion ofunconstitutionally obtained evidence.’99However, the empirical evidence suggests that the actualpolice response to Charter rulings is at best mixed, indicating that individual officers merelyadapt to those rulings that they cannot avoid.200 According to a study undertaken by Kathryn198See Reginald A. Devonshire, “The Effects of Supreme Court Charter-Based Decisions on Policing: MoreBeneficial than Detrimental” (1994) 31 C.R. (4th) 82; and Katharine Moore, “Police Implementation of SupremeCourt of Canada Charter Decisions: An Empirical Study” (1992) 30 Osgoode Hall L.J. 547 [Moore].199See e.g. Penney, “Deterrence”, supra note 59, at 115-116 (arguing that police officers willingly abide by courtrulings that interpret core legal rights, and that they do so primarily because they actively desire to avoid theexclusion of reliable, probative evidence); and Diana Lumba, “Deterring Racial Profiling: Can Section 24(2) of theCharter Realize its Potential?” (2006) 22 Windsor Rev. Legal & Soc. Issues 79 at 91 [Lumba] (arguing that policeabide by Charter rulings provided that: the impugned conduct is correctable by a responsive departmental policy;the Charter judgment clearly and concisely specifies the nature of the invalidated conduct; and the policemisconduct at issue is identifiable by defence counsel and easily litigable at trial).200See e.g. David A. Klinger, “Environment and Organization: Reviving a Perspective on the Police” (2004) Annalsof the American Academy of Political Science 119 at 129 (detailing the tepid response of U.S. police forces to theruling in Miranda v. Arizona).51Moore, both the Royal Canadian Mounted Police and the municipal police forces examined tooksteps to implement landmark Charter rulings, primarily through the institution of newdepartmental policies.20’The study reported that the police generally perceive the Charter as apositive development, inculcating Moore to surmise that police “[aittitudes are not a significantimpediment to implementation and that “[tjhe police have managed to cope with newrequirements imposed by the Charter and have effectively implemented changes to standardprocedures.”203Despite Moore’s conclusion, the study revealed numerous troubling aspects of the policeattitude toward Charter rulings. Indeed, the very notion that the police have “managed to cope”with the Supreme Court’s rights-enhancing decisions suggests that there is a certain institutionalresistance to this type ofjudgment. Such a reaction is hardly supportive of a presumption that thepolice act in good faith when required to adhere to the dictates of those decisions. Morerealistically, it suggests that individual officers will begrudgingly abide by whatever policychanges are eventually implemented by police management. However, when no such changes aremade, there is no indication whatsoever that police officers attempt to abide by the dictates ofcourt rulings. Indeed, in R. v. Schedel,204 the Vancouver Police Department Drug Squadmaintained an official policy in violation of the common law “knock/notice” requirement forsearch warrant executions. This policy was still in place despite the fact that the Supreme Court’sruling R. v. Genest205 held that evidence obtained in violation of the common law rule wasnecessarily excluded under s.24(2),206and despite the fact that Genest was issued more than tenyears before the execution of the search impugned in Schedel.The clear supposition is that individual officers adhere to Charter rulings when they haveno other choice but to do so. Their lack of choice stems primarily from departmental policiesimplemented at the management level. In this regard, Moore’s study further revealed that“[p]olice officers, in their professional capacity, did not care whether the Charter existed or notso long as somebody told them exactly what they had to do in order to comply with itsrequirements.”207 Officers who do not care about the Charter simply cannot be presumed to actin a manner that ensures its provisions are complied with to the greatest extent possible. Moore’s201Moore, supra note 197, at 563-565.202Ibid at 572.203Ibid at 577.2042003 BCCA 364, 175 C.C.C. (3d) 193 [Schedel].205[1989] 1 S.C.R. 59, 45 C.C.C. (3d) 385.206Schedel, supra note 203, at paras. 26-27.207Moore, supra note 197, at 571.52study uncovered even more troubling evidence in this regard, reporting first that officers tend toprefer unclear Supreme Court rulings as those decisions leave “police room to manoeuvre.”208Furthermore, the study found that even individual officers who intend to abide by Charterrulings are themselves concerned that ambiguous court decisions create “[t]he possibility thatpolice officers would be able to evade the spirit of particular Supreme Court decisions.”209 Theavailable evidence is therefore highly indicative of a police occupational culture that — at least atthe street cop level — is willing to ignore Charter rulings issued by the courts whenever it ispossible to do so. The fact that police respond to Charter decisions with “frustration” and“disgust”21°renders it unlikely that individual officers exhibiting the characteristics associatedwith the police occupational subculture willingly adhere to the intricacies of those decisionswhile operating in their low-visibility work environment.2.5.4. “Testalying”: The practice of police perjuryNot only does the evidence suggest that street level police officers tend to view the legallimitations placed on their investigatory powers as frustrating technical impediments, it alsoindicates that these officers often fabricate the details of their interactions with members of thepublic in order to cast their conduct in the most favourable light. Simply stated, there is a generalwillingness within the street cop occupational subculture to lie whenever doing so is deemednecessary to secure the introduction of incriminating evidence or the conviction of suspects whoare believed to be factually guilty. Paciocco links this willingness to lie directly to the SupremeCourt’s development of s. 24(2), stating that “[t]here is also reason to believe thatdisproportionate remedies encourage police officers to lie about how evidence was obtained toavoid the loss of what they honestly believe to be valid convictions.”211Paciocco’ s observation in this regard is itself based on evidence of testimonialmisconduct by police in the United States. In a debate between the Honorable Harold Rothwaxand Allan Dershowitz moderated by Robert Cossack,212 Dershowitz discussed the effects of the208Ibid at 572209Ibid210See e.g. Kirk Makin, “The cutting edge of the law: Growing body of rulings has breathed life into Charter” TheGlobe and Mail (13 April 1987) A5 (reporting Niagara Regional Police deputy chief John Shoveller’s response tothe Charter: “We have had some terrible, terrible decisions. I think a lot of people are now totally frustrated anddisgusted with the system. And, of course, the criminals love it. If an officer is wrong, he can be held accountable.But to turn a criminal loose doesn’t serve justice or the public.”).211Paciocco, “Dichotomy”, supra note 59, at 175.212Robert Cossack, “Are Too Many Guilty Defendants Going Free?” (1995-1996) 33 Am. Crim. L. Rev. 1169.53U.S. exclusionary rule on the veracity of viva voce evidence proffered by police at criminaltrials. On this point, Dershowitz argued that the exclusionary rule:[c]Iearly encourages “testalying” and police perjury. Joe McNamara, the former police chief ofSan Jose and Kansas City [suggests] that in his view, hundreds of thousands of cases of felonypolice perjury occur in the courts in the United States every year — hundreds of thousands — and helimited that just to drug search and seizure cases. The Police Commissioner for New York, formerPolice Commissioner of Boston, attested that testifying is a serious problem. It is interesting thatwhen Mapp came up, D.A. Hogan of New York wrote a brief; an amicus brief; to the SupremeCourt saying, “Please don’t enact an exclusionary rule that will encourage police to lie.” He wasright.213The high rate of police perjury is indicative of an occupational culture willing to secure criminalconvictions by any means necessary. Rather than encouraging police to lie, a strong exclusionarymechanism should instead encourage them to abide by the terms of the core legal rights in orderto avoid triggering operation of the rule in the first place.In addition to Dershowitz and Paciocco, other academics have attempted to confront theissue of police perjury. In arguing that judicial regulation of the investigatory powers of policehas in large part been nullified by the prevalence of police perjury, Donald Dripps observes that“[c]riminal procedure scholars agree that police perjury is not exotic. Police perjury has beencalled ‘pervasive,’ ‘an integral feature of urban police work,’ and the ‘demon in the criminalprocess.”214 Dripps further argues that judges are often forced to choose between the competingstatements of fact provided by police officers on the one hand, and the criminally accused on theother. He suggests that these situations are typically resolved in favor of the police, observingthat “[t]he police story may be improbable, but police officers must be presumed honest, and thedefendant’s word is worthless.”215 The officers must be presumed honest as “[t]he trial judge candiscredit the police testimony only by branding the police as liars and accepting the word of anapparent felon.”216 Despite the fact that courts are extremely loathe to brand police as liars, theevidence suggests that in many cases, there is simply no other accurate way to describe thesubject officers. In discussing the overwhelming presence of police perjury in criminalcourtrooms, Dripps observed that “[ijn some ways, the problem is not only too large to ignore, itis too large to address. It would require judges, lawyers, and academics to admit that much ofwhat they attempt to achieve by way of regulating the police is futile and naive.”217213Ibid at 1177.214Donald A. Dripps, “Police, Plus Perjury, Equals Polygraphy” (1996) 86 J. Crim. L. & Criminology 693 at 693.215Ibid at 696.216Ibid217Ibid at 701.54Though the issue of police perjury has not been as heavily scrutinized in Canada as it hasbeen in the United States, the problem also appears to be pervasive in this country. Indeed,Dianne Martin, who was known primarily for her dedication to uncovering and rectifyingwrongful convictions in Canada, argues that “[w]hen officer self interest, and/or the bond of the‘thin blue line’ is challenged, as in a disciplinary proceeding, overt lying is widely recognized asa common occurrence Moreover, Seagrave has argued that there is a real risk thatCanadian police will “[tIell lies in court or to police commissions and inquiries to protect fellowofficers.”219 Several recent criminal trials have also documented the willingness of police to liein order to justify the illegitimate aspects of their investigatory conduct.22°Additionally, JohnEpp indicates that the inquiries into wrongful convictions in Canada have uncovered:[m]any incidents which call into question the integrity and practices of some police whoinvestigate crime. The disturbing police conduct includes: perjury; the fabrication of evidence;destruction of evidence; negligent, or intentional, inaccuracy in the recording or gathering ofevidence; failure to fully investigate other logical suspects; and failure to disclose to the Crownattorney such acts and omissions. This is a familiar inventory; in varying degrees, similar incidentshave occurred in investigations carried out by some members of most of the police services inCanada.221Though these examples are largely anecdotal in nature, they are nonetheless indicative of apattern of behaviour amongst Canadian police that demonstrates police perjury is relativelycommon. These examples also provide further evidence of the existence of a police occupationalsubculture that both condones and encourages the practice.Furthermore, the relevant case law indicates Canadian courts are both unwilling andunable to deal directly with the issue of police perjury. There are few instances in which policeofficers are prosecuted for fabricating testimony, a fact indicative of the extremely heavy burdenplaced upon those who attempt to bring examples of police perjury to light.222 Moreover, evenwhen there are specific judicial findings of police perjury, the practice is often rationalized asengaged in only by a limited number of rogue officers.223 Such cases indicate that Canadiancourts are generally unwilling to acknowledge the systemic nature of police perjury, thereby218Dianne L. Martin, “Police Lies, Omissions and Tricks: The Construction of Criminality” (2001) [unpublished].See Betsey Powell & Peter Small, “Perjury: Is it different for cops?” The Toronto Star (2 August 2008) Al.219Seagrave, supra note 176, at 185.220See e.g. R. v. Khan, 244 D.L.R. (4th) 443, 189 C.C.C. (3d) 49 at para. 65 (Ont. Sup. Ct. J.) (Molloy J. ruling thatwhile the accused’s version of events was believed, “[t]his is in stark contrast to the evidence of the police officers,which is both inconsistent with the documentary evidence and defies common sense...“);and R. v. Fisher, [2008]O.J. No. 2563 (Sup. Ct. J.) (QL).221John Arnold Epp, “Penetrating Police Investigative Practice Post-Morin” (1997) 31 U.B.C. L. Rev. 95 at para. 3.222See Christine Boyle, et at., “R. v. R.D.S.: An Editor’s Forum” (1998) 10 Can. J. Women & L. 159 at 194.223See e.g. R. v. Ghorvei, (1999), 46 O.R. (3d) 63, 138 C.C.C. (3d) 340 (C.A.) (ruling that the validity of anarresting officer’s testimony could not be attacked on the basis that the same officer’s credibility had beensuccessfully impeached in an unrelated case.).55ignoring the negative impact that the practice has on the legitimacy of policing. Because themajority of officer-accused interactions are unobserved, only the investigating officers know thetrue reasons why particular persons are signaled out for investigation. The officers are thus theonly sources from which a full understanding of the facts can be generated. If the officersinvolved in police investigations do not routinely supply reliable information, if police perjury isindeed endemic, it calls into question both the validity of the police function itself, and thevalidity of the fact-based criminal trial process that is essentially inseparable from the policefunction.The practice of testalying clearly has negative repercussions for all criminally accusedindividuals, but it also has a disproportionately harmful impact on the socially powerless.Because they are over-policed in the first place, the racially and economically marginalizedindividuals who come before the criminal courts often do so with a record of prior criminalconvictions, a notion substantially borne out by the official statistics on criminal recidivism. Thepresence of a prior criminal record in turn increases the likelihood that the officer will bebelieved and the accused’s version of events will be rejected. That such a scenario will oftenunfold is well known to the accused in advance of formal criminal proceedings. If they are awarethat the officer is going to lie about what transpired during the investigation and arrest process,and that those lies are likely going to be accepted by the courts, the accused is substantially lessliable to pursue redress for a violation of their core legal rights. Indeed, the well known fact thatpolice perjury is an accepted testimonial practice likely results in numerous unjustified guiltypleas and charge bargains, a reality that undeniably impacts more negatively upon the socialgroups to whom the criminal justice system is over-applied. The practice of testalying thereforeserves to indirectly reduce the practical effectiveness of the Charter ‘s due process protections bycreating systemic obstacles to their enforcement.2.5.5. The practice of racial profilingIt is now a widely accepted fact that the police routinely engage in racial profiling while carryingout their investigatory and patrol functions. The judiciary — normally quite reticent toacknowledge even more innocuous forms of police misconduct — has acquiesced to the reality of56racial profiling.224 David Tanovich, a noted critic of the practice, defines the problem in thefollowing terms:[r]acial profiling occurs when law enforcement or security officials, consciously or unconsciously,subject individuals at any location to heightened scrutiny based solely or in part on race, ethnicity,Aboriginality, place of origin, ancestry, or religion or on stereotypes associated with any of thesefactors rather than objectively reasonable grounds to suspect that the individual is implicated incriminal activity. Racial profiling operates as a system of surveillance and control. It “createsracial inequalities by denying people of color privacy, identity, place, security, and control over[their] daily life.”225Tanovich uses this definition as the basis for his argument that racial profiling arises out ofsystemic racism prevalent in Canadian society and that as such, it operates on a subconscious aswell as a conscious level.226 Tanovich therefore posits that the problem of racial profiling cannotbe rationalized and minimized by suggesting that it results out of the actions of a few racistpolice officers. Instead, he observes that “[e]ven where an officer claims to be appropriatelyfocusing on suspicious behaviour (the hallmark of good policing), it may be a racializedstereotype that is driving the apprehension of suspicion, and, where this happens, racial profilinghas occurred.”227Stribopoulos similarly acknowledges that both conscious and subconscious racialprofiling occurs, and that it has an appreciable affect on the type of individual whom officerssingle out for further investigation and possible arrest. On this point, Stribopoulos states that:[n]o doubt some police officers hold overtly racist views that may lead them to abuse their arrestpowers. Much more likely, however, is the risk that many more police officers subconsciouslyoperate on the basis of stereotypical assumptions regarding visible minorities. An officer’sassessment of his or her grounds for arrest may be partially skewed by a belief that certain visibleminorities are more likely to commit crimes.228The true danger of racial profiling, then, is the fact that it operates at a subconscious level, andthat its purveyors may be unaware that racialized notions of crime and criminality areinfluencing their decisions to stop, search, and ultimately arrest.Although courts have acknowledged that racial profiling occurs, there is by no means ageneral judicial acceptance of the practice’s prevalence in Canadian policing. To the contrary,many courts refuse to acknowledge racial profiling, choosing instead to ignore facts that are224See for example R. v. Brown (2003), 64 O.R. (3d) 161, 173 C.C.C. (3d) 23 (C.A.); R. v. Nguyen, [2006] 139C.R.R. (2d) 65 (Ont. Sup. Ct. Jj; and Peart v. Peel Regional Police Services Board (2006), 217 O.A.C. 269, 43 C.R.(6th) 175 (C.A.).225David M. Tanovich, The Colour of Justice: Policing Race in Canada (Toronto: frwin Law Inc., 2006) at 13[Tanovich] [footnotes omitted].226 Ibid at 13-14.227Ibid. at2l.228Stribopoulos, “Power”, supra note 190, at 244 [footnotes omitted].57strongly indicative of the racial undertones of officer-accused interactions. In R. v. Grant,229 aroutine patrol by three police officers — two in plainclothes and one in uniform — of a downtownToronto neighborhood resulted in the arrest of a young black male for weapons and narcoticsoffences.23°As one officer explained, the patrol was initially intended to allow the police to“[k]eep an eye out trying to see what was going on, with the hopes of keeping the environmentfor students safe.”23’The accused came to the attention of police by walking on a sidewalk,making “unusual” eye contact with the two plainclothes officers, and by fidgeting with hisclothing in a way that was “[j]ust kind of a little bit ... suspicious The police eventuallystopped and questioned the accused,233 blocking his path on the sidewalk, leaving him with nodirection in which to turn. Once engaged in this questioning, he eventually admitted topossessing a small amount of marijuana and a firearm.234 The accused was subsequently arrested,charged and eventually convicted of five criminal offences relating to the firearm.235 The OntarioCourt of Appeal held that police had detained the accused, that they had no reasonable andprobable grounds for the detention, and that as a result, the accused’s rights under s. 9 of theCharter had been violated.236The panel then addressed the issues under s. 24(2), holding that the firearm was[c]onscriptive real evidence,’ whose admission affected the fairness of the appellant’s trial.”237The Court of Appeal additionally ruled that the conscriptive evidence was not independentlydiscoverable.238 Despite these findings, Laskin J.A. made the following observations:[fjirst, the admission of all conscriptive evidence, including derivative evidence, will have someimpact on trial fairness. Second, if we do not have an automatic exclusionary rule for conscriptiveevidence, then we must recognize that even though the admission of conscriptive evidencecompromises trial fairness, its admission will not always bring the administration of justice intodisrepute. And third, whether conscriptive evidence should be admitted will depend both on theresulting degree of trial unfairness and on the strength of the other two Collins factors.239Based on his conclusion that not all conscriptive evidence that renders the trial unfair will beexcluded under s. 24(2), Laskin J.A. ruled that the criteria to be used when assessing whether the229(2006), 81 O.R. (3d) 1, 209 C.C.C. (3d) 250 (C.A.), leave to appeal to S.C.C. granted, [2007] S.C.C.A. No. 99[Grant cited to C.C.C.].230Ibid. atparas.4, 17.231Ibid. atpara. 19.232IbicL233Ibid.234Ibid235Ibid at para. 4.236Ibid. at para. 30.237 Ibid at para. 46.238Ibid at para. 47.239Ibid at para. 52.58conscriptive evidence renders a trial sufficiently unfair include “[tihe potential effect of thestate’s misconduct on the reliability of the evidence, and the nature of the police’s conduct thatled to the accused’s participation in the production or obtaining of the evidence.”240In applying these criteria to the facts of the case before him, the Laskin J.A. held that theevidence was sufficiently reliable,24’that the police merely “[aisked a fairly innocuous set ofquestions ...“, and that “[t]hey overstepped the bounds of legitimate questioning, but not grosslyso.”242 As a result, Laskin J.A. concluded:[t]he reliability of the evidence and the nature of the police’s conduct that led to their obtaining theevidence, suggest that though the admission of this evidence would have had some impact on trialfairness, that impact would have been at the less serious end of the scale. Put differently, in myview, the impact would not have been so great that it precludes consideration of the other twoCollins factors.243The Justice thus decided that despite the accused’s trial being somewhat unfair, it was notsufficiently so to render the evidence excludable on that basis alone. By focusing on the formthat the police questioning eventually took, the court was able to ignore the investigatorybehaviour that led to the commencement of the questioning in the first place, which was mostlikely an instance of racial profiling.The Canadian courts’ reluctance to acknowledge the fact that police officers engage inracial profiling takes on enhanced significance when it is acknowledged that the practice occursacross the country, and is applied to a wide variety of ethnic groups. Although the study of racialprofiling in the United States has identified African Americans as the primary targets of thepractice, the problem has a broader range of victims in Canada, which extends the issue wellbeyond the confines of greater Toronto and other major urban centres such as Montreal.244According to Criminologist Scot Wortley, racial profiling “[us not confined to the Toronto area.Indeed, over the past half century, similar ‘race/crime’ controversies have emerged with respectto the treatment of black people in Nova Scotia and Quebec, the treatment of Asians and SouthAsians in British Columbia, and the treatment of aboriginal people throughout the country.”245With respect to the Aboriginal context, Toni Williams and Kim Murray argue that:Canada has a long history of treating Aboriginal peoples as ‘uncivilized’ and in need ofassimilation or control ... Policing has played a variety of roles in the processes of dispossession,240Ibid atpara. 53.241Ibid at para. 54.242Ibid. at para. 58.243Ibid at para. 59.244 For an example of racial profiling from Montreal, see e.g. R. v. Campbell, [2005] Q.J. No. 394 (C.Q. crim. &pen.) (QL).245Scot Wortley, “Hidden Intersections: Research on Race, Crime, and Criminal Justice in Canada” (2003) 35 Can.Ethnic Stud. 99 at 100.59displacement, and resistance that stem from this policy. Through activities such as raidinglonghouses, suppressing potlatch ceremonies, enforcing residential school policies, and attemptingto contain organized resistance, the Canadian state has consistently deployed policing in attemptsto repress Aboriginal peoples’ aspirations, cultures and rights.246The historical practice of differentially policing Aboriginals has in modern times led directly toallegations that the police routinely profile native Canadians on the basis of their race. AsMacAlister indicates, “[i]n Canada, the police in the prairies have periodically come under firefor alleged racism against AboriginalsThe practice of racial profiling is not limited to the stopping and searching of racializedindividuals while they are present in certain neighbourhoods and areas. In reality, the practiceencroaches deeply upon other aspects of their everyday lives as well. According to Lorne Sossin:[t]hat the police are embedded not just in the criminal justice system but in the fabric of thecommunity is not a controversial claim but has been illustrated dramatically in recent years by theissue of profiling — whether in the fonn of local police forces engaging in racial profiling whenstopping vehicles for inspection, or decisions made at borders and airports to detain members ofparticular ethnic and religious groups for secondary searches.248Tanovich similarly reports that “[r]acialized stereotypes influence not only who is stopped andquestioned but also who is searched, arrested, subjected to police force, or ultimately detained incustody. In some cases the stereotype will lead police to overreact because they have perceivedthe situation to be far more dangerous than it really is.”249In the result, racial profiling occurs throughout all regions of Canada, it affects a widespectrum of ethnic and racial groups, and it occurs in a wide variety of circumstances. Thepractice therefore significantly deepens the differential impact that the institution of Canadianpolicing has on society’s racially, economically and socially marginalized communities andindividuals. These realities must be taken into account by the Supreme Court of Canada when itis engaged in the interpretation and application of s. 24(2) and the Charter ‘s core legal rights.2.5.6. The social realities of policing in CanadaThe relevant evidence suggests that a negative police occupational subculture exists in Canada.When this fact is considered together with the low-visibility setting in which officers’ day-to-day246Toni Williams & Kim Murray, “Shifting the deckchairs on the Titanic once more: A plea for redundancy in thegovemance of relationships between the police and Aboriginal peoples” in Margaret E. Beare & Tonita Murray,eds., Police & Government Relations: Who’s Calling the Shots? (Toronto: University of Toronto Press, 2007) 172 at173.247MacAlister, supra note 174, at 172.248Lome Sossin, “The Oversight of Executive Police Relations in Canada: The Constitution, the Courts,Administrative Processes, and Democratic Governance” in Margaret E. Beare & Tonita Murray, eds., Police &Government Relations: Who’s Calling the Shots? (Toronto: University of Toronto Press, 2007) 96 at 127.249Tanovich, supra note 224, at 24-25.60poling activities occur, the frequency with which individual officers engage in unauthorized orunlawful, the general institutional resistance to court rulings that solidify core legal rights at theexpense of police powers, and the willingness with which police lie to cover-up investigatorymisconduct, it becomes apparent that the Charter right of individuals who come to the attentionof the police are in a position of relative peril. This reality is significantly exacerbated by the factthat the entirety of the policing function is disproportionately applied to the socially, racially andeconomically marginalized segments of Canadian society. As Dianne Martin argued, “[m]ostcases in the criminal justice system involve targeted, racialized, marginalized people who areknown to each other, and known to the system, and most of these cases are resolved through pleanegotiations. It is fewer than 10-20 per cent of all charges that actually proceed to a contestedtrial, and of that percentage, a much smaller number involve cases where factual guilt is atissue.”250 As a result, the core legal rights of the individuals who are most likely to invoke themare disproportionately vulnerable to potential violation. This ought to be of great concern to theSupreme Court as these relatively powerless individuals are not in a realistic position tovigorously defend the systematic violation of their rights.2.6. Conclusion to Chapter 2Proponents of the Canadian criminal justice process often assume that it provides equal justicefor all. Many consider that the Charter works to ensure that differential applications of thesystem are minimized to the greatest extent possible, and that it has all but limited overt biasesand prejudices over the course of the past 25 years. The system’s most ardent critics often targetthe Charter as the root cause of the system’s inability to reduce crime sufficiently or punishoffenders adequately. In reality, however, neither of these positions is entirely accurate. First, thecriminal justice system is neither constructed solely to decrease crime, nor to harshly punishcriminals. Instead, it serves as a mechanism though which maintenance of the social status quo issought, and to a large extent obtained. This function, which was first identified and critiqued byMarx and Marxist scholars, was at the root of the criminal justice system that Canada inheritedfrom the United Kingdom in the 1700s. In modern times, Canada’s system is disproportionatelyapplicable to the socially powerless, the racially marginalize and the economicallydisadvantaged. Furthermore, the institution of Canadian policing is characterized by features that250Dianne Martin, “Distorting the Prosecution Process: Informers, Mandatory Minimum Sentences, and WrongfulConvictions” (2001)39 Osgoode Hall L.J. 513 at 527.61seriously jeopardize the integrity of the core legal rights of individuals who are routinelysubjected to investigations, interrogations and searches.These realities would seem to call for a broad interpretation and application of s. 24(2) inorder to ensure the available due process protections have as great a practical impact as possible.However, rather than striking out against the illegitimacy of a system based on a history ofrepression, the Charter ‘s exclusionary mechanism currently acts to legitimize thedisproportionality endemic in modern Canadian criminal justice. When critically assessed inlight of the criminal justice system’s historical legacy, the Charter ‘s application in the criminallaw context is less concerned with guaranteeing procedural rights for accused persons, and moreconcerned with ensuring that the system appears legitimate. On this point, Mandel concludesthat:[t]he Supreme Court’s oracle-like pronouncements rendered a decade after the fact can havenothing to do with these concrete goals of procedural rights; in fact, they systematically defeatthem. Their only conceivable raison-d’être is a legitimation one: to protect the reputation of thesystem by this ad hoc, post hoc purifjing mechanism, while at the same time giving theimpression of a system concerned with these rights and interests by virtue of engaging in earnestbut inconclusive debates about them.251These “earnest” debates have the effect of shifting the focus away from the overall repressivenature of the system and onto to its supposed fairness and equality. Mandel argues that theCharter ‘s core legal rights are “[a] whole way of approving or disapproving of punishment inwhich the freedom of the judiciary is central. Since the rights are merely incidental tolegitimation, they are symbolic, discretionary and conditional ... They are meant to protect thesystem not the public“.It is in this context, then, that the validity of the Supreme Court’sdevelopment of the Charter’s exclusionary mechanism must ultimately be judged.251Mandel, Legalization, supra note 99, at 203.252Ibid at 224.62Chapter 3. The Rise of Canada’s Exclusionary RuleDespite the subject matter with which the jurisprudence deals, and the vast amount of academiccomment that it has generated, the Supreme Court of Canada’s interpretation and application ofs. 24(2) of the Charter has remained relatively consistent since it was first introduced more thantwo decades ago. The Supreme Court’s treatment of s. 24(2) remains founded on its ruling inTherens, specifically set out in Collins, and ultimately clarified in Stiliman, even though thecourt has issued more than 150 rulings and heard more than 100 applications for leave to appealinvolving the section since1984253.An applicant seeking the exclusion of unconstitutionallyobtained evidence under the Charter must inevitably rely upon the principles set out in thesethree cases. Therefore, if the decision-making process of the Supreme Court in this subject areais to be critically analyzed in a sufficient manner, these three cases must necessarily provide thebasis for that analysis. However, in order to understand the full significance of these rulings, it isfirst necessary to place them into their proper historical context. This can be accomplished bybriefly examining the origins of exclusion and the pre-Charter approach to illegally obtainedevidence, and by outlining the constitutional drafting process that led s. 24(2)’s inclusion in theCharter. The rationes decidendi of the three leading decisions will then be examined in detail.This explicatory exercise will provide a sound basis on which to analyze the Supreme Court’sadjudicatory process in relation to s. 24(2), and to judge the validity of the Court’s developmentof Canada’s exclusionary rule by referencing the nature of the Canadian criminal justice system.3.1. Origins: Exclusion in the U.S. and pre-Charter CanadaPrior to the proclamation of s. 24(2), the means through which the state obtained evidence ofcriminal wrongdoing was essentially irrelevant to the issue of admissibility. However, theSupreme Court of Canada’s development of the exclusionary mechanism contained in s. 24(2)did not occur in a jurisprudential vacuum. Courts around the world have long grappled with thecontentious issues surrounding various forms of the exclusionary rule. In the United States, thoseissues have been swirling since 1914, when that country’s Supreme Court issued its first majordecision on exclusion, Weeks v. United States.254 In discussing the proper recourse for a violationof the Fourth Amendment,255 Day J. ruled:253As of the date of writing, Quicklaw reports that there are 159 Supreme Court judgments mentioning s. 24(2), and119 applications for leave to appeal involving the section.254232 U.S. 383 (1914) [Weeks].255U.S. Const. amend. IV. In its entirety, the Fourth Amendment reads: The right of the people to be secure in theirpersons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no63[t]he tendency of those who execute the criminal laws of the country to obtain conviction bymeans of unlawful seizures and enforced confessions, the latter often obtained after subjectingaccused persons to unwarranted practices destructive of rights secured by the Federal Constitution,should find no sanction in the judgments of the courts, which are charged at all times with thesupport of the Constitution, and to which people of all conditions have a right to appeal for themaintenance of such fundamental rights.256Day J. further held that without a meaningful remedy, “[t]he protection of the 4th Amendment,declaring [the individual’s] right to be secure against [unlawffih] searches and seizures, is of novalue, and, so far as those thus placed are concerned, might as well be stricken from theConstitution.”257The United States Supreme Court subsequently extrapolated upon Weeks in SilverthorneLumber Co. v. United States,258 a case in which the federal government admitted that certainpapers had been seized from the accused in a manner that constituted an “outrage”. Thegovernment nevertheless intended to copy the information contained in the illegally obtaineddocuments, and to then use that information against the accused at his trial.259 In rejecting thevalidity of this intention, Holmes J. ruled:[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that notmerely evidence so acquired shall not be used before the Court but that it shall not be used at all.Of course this does not mean that the facts thus obtained become sacred and inaccessible. Ifknowledge of them is gained from an independent source they may be proved like any others, butthe knowledge gained by the Government’s own wrong cannot be used by it in the wayproposed.26°Holmes J. ‘ s decision thereby rendered all evidence obtained in contravention of the protectionsset out in the U.S. Constitution automatically inadmissible in federal criminal trials. Twosubsequent Supreme Court decisions rendered in the 1960s — Mapp v. Ohio26’and Miranda v.Arizona262 — extended the rule of automatic exclusion to criminal proceedings commenced understate law as well. As a result, the exclusionary mechanism initially set out in Weeks continues toplay a significantly determinative role in admissibility assessments throughout the entirety of theUnited States.warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the placeto be searched, and the persons or things to be seized.256Weeks, supra note 253, at 392.257Ibid at 393.258251U.S. 385 (1920).259Ibid. at 391.260Ibid. at 392.261367 U.S. 643 (1961) [Mapp].262384 U.S. 436 (1966) [Miranda].64The U.S. Supreme Court’s automatic exclusionary rule has generated considerablecontroversy since its inception.263 Criticism of its rigidity eventually led the American judiciaryto carve out three main exceptions to the general rule.264 First, according to Paul Marcus, thedoctrine of harmless error asserts that “[i}f a violation has occurred under the Fourth, Fifth andSixth Amendments, generally the conviction of the defendant is not automatically reversed.Instead the question becomes whether the court can conclude that the error in admitting theevidence which should have been excluded is ‘harmless beyond a reasonable doubt.”265 Onlywhen this threshold is not met will the evidence be excluded. Second, the impact of automaticexclusion can be limited if a specific exclusionary ruling is interpreted as having only aprospective effect, as opposed to having both prospective and retrospective application.266Clearly, a ruling with retrospective application will have a far greater impact than one that isonly permitted to impact upon future investigatory conduct.Third, the most significant — and perhaps the most heavily disputed — exception to therule of automatic exclusion involves determining whether the illegal police conduct is excusableon the basis that the subject officers acted in good faith. The United States Supreme Court firstformally recognized267 a good faith exception to Fourth Amendment violations in United Statesv. Leon.268 In that case, the police secured judicial authorization for a search warrant primarily byusing information received from a confidential informant.269 Although the search warrant waseventually invalidated for lack of probable cause, it was facially valid at the time of itsexecution.270 In deciding that the evidence seized under the impugned warrant was neverthelessadmissible at trial, the Supreme CQurt first reiterated the fact that the purpose of the suppressiondoctrine is to deter future police misconduct,27’and then observed that “[s]uppression of263See e.g. Lane V. Sunderland, “Liberals, Conservatives, and the Exclusionary Rule” (1980) 71 J. Crim. L. &Criminology 343 [Sunderland].264Paul Marcus, “The Exclusion of Evidence in the United States” (1990) 38 Am. 3. Comp. L. 595 at 603-604[Marcus] [footnotes omitted]. See also Brent D. Stratton, “The Attenuation Exception to the Exclusionary Rule: AStudy in Attenuated Principle and Dissipated Logic” (1984) 75 J. Crim. L. & Criminology 139 at 140 [Stratton](noting additional exceptions such as the independent source exception, and the attenuation exception).265Ibid at 603.266Ibid at 604.267The issue of good faith and its relation to the suppression doctrine had long been debated in district and appellatecourts throughout the United States. It also generated an enormous degree of academic literature. See Comment,“Rethinking the Good Faith Exception to the Exclusionary Rule” (1980) 130 U. Pa. L. Rev. 1610.268468 U.S. 897 (1984) [Leon].269Ibid at 901.270Ibid at 902-904.2711bic1 at 916.65evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and onlyin those unusual cases in which exclusion will further the purposes of the exclusionary rule.”272Speaking for the majority of the Supreme Court, White J. set out the substance of thegood faith exception, ruling that the suppression of evidence obtained under the auspices of whatis subsequently determined to be an invalid warrant does not advance the overarching purpose ofthe exclusionary rule provided that the officer’s reliance on the warrant was objectivelyreasonable.273 The majority added the caveat of objectivity to it reasonableness requirement inorder to avoid countenancing police reliance on warrants that — despite being technically valid atthe time of execution — were nevertheless obtained through police deception of the issuingmagistrate, through the overt carelessness of the authorizing judge, or that were so faciallydeficient that any reasonably well-trained officer would not have relied on their validity.274 Injustifying the creation of the good faith exception, White J. observed that:[t]he good-faith exception for searches conducted pursuant to warrants is not intended to signalour unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do notbelieve that it will have this effect. As we have afready suggested, the good-faith exception,turning as it does on objective reasonableness, should not be difficult to apply in practice. Whenofficers have acted pursuant to a warrant, the prosecution should ordinarily be able to establishobjective good faith without a substantial expenditure ofjudicial time.275In applying the newly created exception to the facts of the case, the majority ruled that althoughthe warrant had been issued improperly, the police had not engaged in misconduct in preparingtheir affidavit in support of the warrant and that as such, their subsequent reliance on thedocument in the execution of the search was objectively reasonable and thus in good faith.276The majority’s good faith exception received trenchant criticism from the academiccommunity in the United States.277 Scholars commonly challenged the new rule’s validity on thebasis that it effectively robbed the Fourth Amendment of its practical effect. In refuting theSupreme Court’s argument that suppression should only be invoked if it advances the cause ofdeterrence, Donald Dripps contends that:[tb a significant degree, the severity of the sanction expresses the importance of the violatednorm. Even if the sanction does not deter, the refusal to apply it or anything else expresses thejudgment that the underlying norm is of little importance. Leon teaches that Fourth Amendment272Ibid at 918.273Ibid at 922.274 Ibid at 923.275Ibid at 924.276Ibid at 926.277See David Clark Esseks, “Errors in Good Faith: The Leon Exception Six Years Later” (1990) 89 Mich. L. Rev.625 at 625-626 [Esseks].66violations do not matter. Such an evaluation betrays the fundamental principle ofconstitutionalism, which is after all that the Constitution states the law.278Despite the arguments against good faith, many levels of court in the United States continue toapply the exception in dismissing suppression applications in Fourth Amendment cases.279 Thus,the good faith exception to the automatic exclusionary rule for all unconstitutionally obtainedevidence continues to influence the outcome of criminal trials throughout the country.These exceptions to the general rule of automatic exclusion arose in the United Statesprimarily because the U.S. Supreme Court adopted the deterrence rationale to justify theexclusion of illegally obtained evidence. The acceptance of this new ideological outlookrepresented a significant change from when the rule was first incorporated into the jurisprudence,a time during which little direct attention was paid to the rule’s philosophical footings.28°According to Paciocco, the deterrence rationale suggests that “[tjhe purpose behind excludingthe ill-gotten gains of unconstitutional acts is to deter such acts in the future. If the evidence willbe excluded, there is nothing to be gained on the part of state agents in disregarding theConstitution hence there will be no incentive to do so. Presumably this will reduce the incidenceof constitutional violations.”281 However, the deterrent effect of exclusion has never beenconclusively proven. As Paciocco notes, “[ut is difficult if not impossible to prove that theexclusion of evidence actually deters unconstitutional acts. While deterrence cannot besubstantiated, the costs of exclusion can be graphically demonstrated through anecdotalevidence.”282 The less likely it is that exclusion can be proved to deter future violations inparticular circumstances, the less likely it is that it will be ordered. When this rationale isapplied, then, the exclusion of illegally obtained will be rare. The adoption of the deterrencerationale therefore represents the U.S. Supreme Court’s clear intention to scale back theexclusionary rule’s practical impact.283In pre-Charter Canada, the Supreme Court ensured that the U.S. position on exclusiondid not encroach into the Canadian jurisprudence. In R. v. Wray,284 a majority of the Court ruledthat judges lacked the discretion to exclude otherwise reliable evidence from a criminal trial278Donald Dripps, “Living with Leon” (1986) 95 Yale L.J. 906 at 936.279Esseks, supra note 276, at 633.280Paciocco, “Judicial Repeal”, supra note 59, at 331.281Ibid at 332 [footnotes omitted].282Ibid at 336 [footnotes omitted].283Ibid [footnotes omitted]. In Paciocco’s words, “[t]he weaknesses of the rationale have been exploited to createnew exceptions to the exclusionary rule and to confirm, develop and extend old exceptions. It is difficult to resist theconclusion that, like a pack of hungry wolves, Supreme Court justices, unconvinced of the merits of exclusion,separated the most vulnerable rationale from the herd of rationales for the purpose of savaging it.”284[1971] S.C.R. 272, 11 D.L.R. (3d) 673 [Wray cited to S.C.R.].67simply because it had been obtained illegally or improperly, or even in a way that brought theadministration ofjustice into disrepute.285 In so ruling, Martland J. relied on the English decisionof Kuruma v. The Queen,286 in which the U.K. House of Lords determined that “[tjhe test to beapplied in considering whether evidence is admissible is whether it is relevant to the matters inissue. If it is, it is admissible and the court is not concerned with how the evidence wasobtained.”287 In integrating this test into Canadian law, Martland J. ruled:[tjhe allowance of admissible evidence relevant to the issue before the Court and of substantialprobative value may operate unfortunately for the accused, but not unfairly. Itis only theallowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous,and whose probative force in relation to the main issue before the Court is trifling, which canbesaid to operate unfairly.288Although the facts in Wray involved an involuntary confession rather than evidence receivedthrough a specific rights violation, the ruling set the standard for subsequent judicial treatmentofunconstitutionally obtained evidence under the common law.The Supreme Court’s decision in R. v. Hogan289 solidified the notionthat the rule fromKuruma was applicable to rights violations occurring in Canada as theCourt applied the positiontaken in Wray directly to adjudication under the Canadian Bill ofRights. In Hogan, theaccusedsought to quash his conviction on the basis that he was denied his rightto counsel during theinvestigation process. In deciding that this fact was immaterial to the propriety of the conviction,Ritchie J. stated:[w]hatever view may be taken of the constitutional impact of the Bill of Rights, and with allrespect for those who may have a different opinion, I cannot agree that, wherever there has been abreach of one of the provisions of that Bill, it justifies the adoption of the rule of “absoluteexclusion” on the American model which is in derogation of the common law rule long acceptedin this country.29°The Supreme Court was satisfied that the quasi-constitutional Billof Rights did not alter thecommon law position regarding the admissibility of illegally obtained evidence. In this regard,the majority held that “[tjhe common law rule of admissibility of illegally or improperlyobtainedevidence rests primarily on the relevancy of that evidence subject only to the discretionof thetrial judge to exclude it on the ground of unfairness as that word was interpreted in thisCourt in[Wray],,291Therefore, whenever evidence was deemed sufficiently reliable and probative, it285See McLellan & Elman, supra note 51, at 225.286[1955] A.C. 197 [Kuruma].2871b1c1 at 203.288Wray, supra note 283, at 293.289[1975] 2 S.C.R. 574, 62 D.L.R. (3d) 193 [Hogan cited to S.C.R.].290Ibid at 597-598.291Ibid. at 582.68would continue to be admissible regardless of whether the accused’s rights were violated duringthe investigatory process.The Supreme Court’s pre-Charter reliance on Kuruma for its formal position onexclusion is somewhat concerning. That case came before the House of Lords by way of appealagainst a decision rendered by the Court of Appeal for Eastern Africa in 1954. The accused — ablack African — had been convicted at trial of unlawfully possessing two rounds of ammunitionin contravention of Kenyan law, and had been sentenced to death.292 Previously “a man of goodcharacter”,293 he had come to the attention of authorities on the date of the offence in highlysuspect circumstances. After receiving a leave of absence from his employer to visit his“reserve”, the accused set off on his bicycle down a main thoroughfare on which he knew therewas a police roadblock at which he was likely to be searched. He selected this path even thoughhe could easily have taken another route to reach his home, thereby avoiding the roadblock.294Upon reaching the roadblock, the accused was stopped as expected, and the validity of his paperswas checked. Despite his documentation being in order, the accused was subjected to a pat downsearch, which the investigating officer later testified raised the suspicion that the accused was inpossession of ammunition and a pocketknife.295 After this initial search, the accused was taken toa police enclosure where two officers performed a more extensive search. This search, whichinvolved removing the accused’s shorts, eventually located the incriminating evidence.296The officers were purportedly acting under the authority of a Kenyan law providingpolice with significant stop and search powers. The applicable regulation provided that “[amypolice officer of or above the rank of assistant inspector with or without assistance and usingforce if necessary ... may stop and search ... any individual whether in a public place or not if hesuspects that any evidence of the commission of an offence against this regulation is likely to befound on such ... individual and he may seize any evidence so found.”297 Despite the obviouslywide ambit of otherwise arbitrary searches legitimized by this regulation, the investigatingofficers nevertheless overstepped their authority. At the time the search was performed, neitherofficer occupied a position at or above the rank of assistant inspector.298 The law did thereforenot authorize the warrantless search of the accused. The accused impugned the search as illegal,292Kuruma, supra note 285, at 198.293Ibid294Ibid2951bic1 at 198-199.2961bic1 at 199.297Ibid at 198.298Ibid at 199.69and argued that the evidence obtained through that illegal search ought to have been inadmissibleat his trial.299 Kuruma denied that he had been in possession of the ammunition or thepocketknife, suggesting instead that the investigating officers had planted any such evidenceupon his person.30°Despite the suspicious circumstances and serious consequences of this case — or perhapseven because of them — the House of Lords was content to rely on the rule that all reliableevidence was admissible at a criminal trial regardless of how it had been obtained.30’In comingto this conclusion, their Lordships referred to an earlier English decision in which the presidingjudge stated the rule regarding admissibility in the following dubious terms: “[ut matters not howyou get it; if you steal it even, it would be admissible.”302 Even using this wide statement ofautomatic admissibility of reliable evidence, the facts in Kuruma could easily have beeninterpreted as calling for the exclusion of the ammunition on the basis of unreliability. Thoughthe accused argued that he did not ever possess the evidence, the courts simply preferred theinvestigating officer’s testimony on this point. Their conclusion in this regard appears basedsimply on the fact that none of the investigating officers officially carried the same type ofammunition. This type of suspect judicial determination was apparently expected by the Crown,which was sufficiently certain that the evidence would be admitted on the basis of theinvestigating officer’s testimony alone that it opted not to call the two other police officers andone civilian who allegedly witnessed the fruitful outcome of the search.303 This evidentiary lapsewarranted nothing more than a mild reprimand from the House of Lords: “[t]heir Lordships thinkit was most unfortunate, considering the grave character of the offence charged, which carries acapital penalty, that these important witnesses were not called by the prosecution: it was notsuggested that they were not available.”304The rationale underlying the ruling in Kuruma seems highly suspicious. A young Africanmale worker with no prior history of criminal activity is stopped at police roadblock of which heis well aware. Regardless of the fact that his papers are in order, he is searched — illegally — andevidence of a capital offence is uncovered. Despite the fact that the Crown is aware that thepolice officers were acting beyond the scope of their authority when conducting the search, and299Ibid300 Ibid at 202.301Ibid at 203.302Ibid SeeR. v. Leatham (1861), 8 Cox C.C. 498.Ibid at 202.Ibid70that the accused denies possession of the evidence, it elects not to call several available witnessesto corroborate its primary evidence. Nevertheless, the House of Lords was ultimately willing todeem the impugned evidence reliable and therefore admissible regardless of the fact that it wasillegally obtained. More troubling still, a majority of the Supreme Court of Canada was willingto incorporate this dubious precedent into the Canadian jurisprudence in Wray with littlediscussion of its problematic factual circumstances. Rather than specifically addressing the issue,Martland J. was content to reiterate the relevant circumstances and characterize them as“unusual”.305 In fact, the dubious nature of the scenario in Kuruma was eventually used to justifyan excessively narrow interpretation of a judge’s residual discretion to exclude evidence thatoperated unfairly against the accused.306 Martland J. appears to have reasoned that if suchdiscretion could not have been justifiably exercised in Kuruma, then the scope of that residualdiscretion must be very narrow indeed. In this sense, the Supreme Court’s pre-Charter positionon exclusion was explicitly founded upon the judicial desire to avoid addressing the potentiallyproblematic social-structural circumstances that are often directly related to the issue of criminalinvestigations.3.2. Creating s. 24(2): The language of a political compromiseThe Supreme Court’s pre-Charter position on the admissibility of illegally obtained evidenceengendered substantial controversy prior to 1982, and was the focal point of the politicaldisagreements that arose during the constitutional drafting process, at least insofar as thosedisagreements pertained to the potential remedies to be included in the document.307 Thiscontroversy ultimately led the framers of the newly patriated constitution to explicitly include anexclusionary mechanism in the Charter ‘s enforcement section. Thus, the highly politicizedconstitutional drafting process resulted in the striking of a “compromise” between the Canadiancommon law position and the more expansive American rule. In R. v. Collins,308 Lamer J.commented on this compromise, observing that s. 24(2) was intended to occupy an intermediateposition regarding the exclusion of unconstitutionally obtained evidence, rejecting as it did boththe American rule of automatic suppression and the common law rule deeming all relevant305Wray, supra note 283, at 293.306IbicL at 295.307See McLellan & Elman, supra note 51, at 206-20 8.308Collins, supra note 52.71evidence admissible, irrespective of how it was secured by the state.309 However, suggesting thats. 24(2) exists as a compromise somewhat trivializes the process through which it was formed.The creation of s. 24(2) involved a long and arduous drafting process, the course ofwhich was almost entirely dictated by political disagreements between various interest groupsand political parties.31°The primary point of contention concerned whether the Charter wouldexplicitly provide for the exclusion of unconstitutionally obtained evidence, or whether it wouldsimply preserve the common law status quo. One the one hand, organizations such as theCanadian Civil Liberties Association sought to ensure that the Charter would contain aneffective remedial section lest it rights be reduced to mere symbolism. As Walter Tarnopoiskyargued, “[o]rdinarily one would expect that when a Bill of Rights sets out certain rights andfreedoms, that a remedy would be presumed. In other words, our Courts would not be moved toassert there is a right unless there is a remedy, but ... you will note that the majority of ourSupreme Court has not followed that kind of logical conclusion.”31’On the other hand, groupssuch as the Canadian Association of the Chiefs of Police opposed the entrenchment of theCharter on the grounds that it would unduly limit the fairness and effectiveness of policeinvestigations into criminal behaviour.312The inherently political nature of the s. 24(2) drafting process inevitably resulted in thepromulgation of a remedial section composed of a number of extremely vague concepts couchedin ambiguous language. In its entirety, the section reads as follows:24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained ina manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidenceshall be excluded if it is established that, having regard to all the circumstances, the admission of itin the proceedings would bring the administration ofjustice into disrepute.313As is plain from even a cursory reading of the section, its vague terminology does notspecifically dictate when evidence is to be excluded from a criminal trial. Simply stated, thesection requires extensive judicial interpretation before it can be applied by any court. TheSupreme Court’s various attempts at articulating the precise nature of the political compromise3091bic1 at para. 29,310In 1980-81, groups including the Canadian Civil Liberties Association, the Canadian Jewish Congress, theCanadian Bar Association, the Canadian Association of Chiefs of Police, the Canadian Association of CrownCounsels, the Progressive Conservative Party of Canada, and the New Democratic Party of Canada all made oralsubmissions regarding the eventual form of s. 24(2) to the Special Joint Committee of the House of Commons andSenate on the Constitution. See McLellan & Elman, supra note 51; Roach, Due Process, supra note 100, at 42-50;and Mandel, Legalization, supra note 99, at 181-185.311Proceedings of the Special Joint Committee on the Constitution of Canada (1980-81) No. 7 at 15 [JointCommittee Proceedings].312Mandel, Legalization, supra note 99, at 182.313Charter, supra note 36, s. 24(2).72that s. 24(2) represents have created the bulk of the controversy associated with exclusionarymechanism. As Peter Hogg has observed, “[gjiven the vague language of s. 24(2), it is notsurprising that the Supreme Court of Canada has had difficulty in developing a consistent bodyofjurisprudence.”3143.3. The Supreme Court and Canada’s exclusionary ruleThe language used to enshrine the remedy contained in s. 24(2) of the Charter is imprecise, andtherefore open to differential judicial interpretation. Rather than there existing only one clearlycorrect method of excluding evidence obtained through the breach of a Charter right, theparticular words selected by the framers in setting out the section renders its interpretation aninexact science. In reality, there are as many possible interpretations for s. 24(2) as there arepersons interested in interpreting it. However, the Supreme Court of Canada has settled on aparticular reading of the section’s language, and has held firmly to that reading for almost aquarter of a century. In essence, the Court’s current approach to the exclusion ofunconstitutionally obtained evidence can be understood by an examination of theTherens/Collins/Stiliman regime. It is nevertheless instructive to also briefly examine the routean accused person must taken when applying for the exclusion of evidence under s. 24(2), aswell as the alternative route to exclusion under s. 24(1). These explanations will provideadditional context for the Supreme Court’s authoritative trilogy of decisions pertaining to s.24(2).3.3.1. The route to the exclusionary remedyThe route an individual must take in order to receive a remedy under s. 24(2) is not an easy one.Generally speaking, the accused must first provide the Crown with sufficient notice regarding hisor her intention to raise Charter arguments in an effort to impugn the conduct of the police in theinvestigation process.315 Once this notice is filed with the courts and properly served upon theCrown, the accused must prove on a balance of probabilities that his or her rights have beenviolated.316 If these substantial hurdles are cleared, the accused must then prove on a balance ofprobabilities that the remedy he or she seeks is warranted in the circumstances.317 Given thisprocedure, if the accused’s arguments regarding the appropriateness of exclusion fail, his or her314Hogg Constitutional Law, supra note 148, at 959.315R. v. Dwernychuk (1992), 77 C.C.C. (3d) 385, 135 A.R. 31 (C.A.), leave to appeal to S.C.C. refused, [1993]S.C.C.A. No. 30.316Collins, supra note 52, at para. 21.317See e.g. Ibici; and R. v. Iraheta, [2007] O.J. No. 2205.73arguments pertaining to the substantiverights violation will have only a negligible impact ontheoutcome of the trial, if any impact at all. As a result,s. 24(2) takes on a hugely significant role inrelation to the practical impact of the core legal rights.It follows from this that a restrictive interpretationof s. 24(2) will concomitantly reducethe effectiveness of theCharter ‘s core legal rights, rendering them merely incidental to theadjudication of criminal offences. For example, the courtshave created a large body of case lawpertaining to an individual’s right to be free from unreasonablesearch and seizure under s. 8.However, if no available remedy is capable of sufficientlydealing with violations of s. 8, itbecomes impossible to vest that right with meaning insofar asit purportedly protects a personsubject to the state’s powers of criminal investigation. If in mostcases, s. 8 violations have noeffect on the outcome of criminal trials, it becomes arguablethat the section has little or nopractical meaning whatsoever. It cannot even be realistically said tohave a deterrent impact as, ifviolations do not result in exclusion, there is no need for policeto bring their behaviour into linewith s. 8 requirements. This suggests that if rights are to betaken seriously in even the mostminimal sense, judicial interpretation of constitutional remedies ought to bebroad and expansiverather than narrow and restrictive. Without a remedy appropriately constructed to properly andadequately compensate the victim of a Charter violation, the substantive right becomes nothingmore than a procedural guideline for police, one that can beignored whenever the subjectivelyapprehended circumstances dictate. In this sense, the adjudication of s. 24(2) touches upon theCharter ‘s core legal rights, and its interpretation and applicationwill ultimately determine thepractical impact of those rights.3.3.2. Section 24(1): Canada’s “other” exclusionary mechanismThe remedial mechanism contained in s. 24(1) is couched in broad language, and is thuspotentially susceptible to as numerous and widely disparate judicial interpretations as s. 24(2).The section reads as follows:24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed ordenied may apply to a court of competent jurisdiction to obtain such remedy as the court considersappropriate and just in the circumstances.318The Supreme Court has observed that the specific language of the section has the potential torender the remedy extremely powerful. In R. v. Mills,319 Lamer J. stated in dissent that wheninterpreting s. 24(1), judges “[sjhould not retreat from the development of imaginative and318Charter, supra note 36, s. 24(1).319[198611 S.C.R. 863, 29 D.L.R. (4th) 161 [Mills cited to S.C.R.].74innovative remedies when just and appropriate.”320 Inthe same case, Mclntrye J. observed forthe majority that “[i]t is to be hopedthat trial judges will devise, as the circumstances arise,imaginative remedies to serve the needs of individual cases.”32’Despite the potential for broad judicial interpretationof the remedies available under s.24(1), the Supreme Court concluded that a judge’sauthority to exclude unconstitutionallyobtained evidence is derived solely from s. 24(2). InTherens322 Le Dam J. ruled that if exclusionwas possible under both subsections “s. 24(2) wouldbecome a dead letter. The framers of theCharter could not have intended that the explicit and deliberately adopted limitationin s. 24(2)on the power to exclude evidence because of an infringement or a denial of aguaranteed right orfreedom should be undermined or circumvented in such a manner.”323 This seems to be anexceedingly logical and practical interpretation of the interplay between the two subsections of s.24. Indeed, if it were possible to exclude evidence as an “appropriate and just” remedy, therewould be no need to resort to s. 24(2), it being impossible to imagine asituation where exclusionwas neither appropriate nor just, yet still necessary to prevent disrepute from flowing to theadministration ofjustice.Despite this explicit ruling, several more recent cases have indicated that there may infact be a limited authority for the exclusion of evidence under s. 24(1), provided that exclusion isnecessary to ensure the fairness of the trial process.324 In essence, this limited authority isrestricted to evidence obtained either unfairly or illegally, but not in contravention of theCharter. In R. v. Harrer,325 the Supreme Court of Canada dealt with the admissibility ofevidence collected by United States law enforcement officials against a Canadian accused whileshe was in custody in the U.S. The accused challenged the admissibility of the evidence as theAmerican law enforcement officials employed investigatory techniques that would have renderedthe evidence inadmissible had Canadian police utilized the same methods.326 Speaking for themajority, La Forest J. stated:[t]he appellant does not complain about any improper police action in Canada. Consequently, theonly grounds that may be available to the appellant, as her counsel recognized during the oralhearing, is that the admission of the evidence would violate the appellant’s liberty interests in a320Ibid at para. 44.321Ibid. at para. 266.322Theren.s, supra note 97.323Ibid at para. 60.324Stuart, Charter Justice, supra note 52, at 456.i25[199513 S.C.R. 562, 128 D.L.R. (4th) 98 [Harrer cited to S.C.R.J.326Ibid atpara. 1.75manner that is not in accordance with the principles of fundamentaljustice under s. 7 of theCharter, or would violate the guarantee of a fair trial under s. 11(d) of the Charter.327La Forest J. further observed that courts should not assume theevidence would render a trialunfair simply because it was obtained by investigatory techniques that would have violated theCharter had they been employed by agents of the Canadian state,328 and acknowledged thatCanada lacked the legal authority to impose its procedural requirements on foreignjurisdictions.329The Justice ultimately concluded that the admission of the statements made by theaccused to the U.S. officials did not render her trial unfair, and thus need not have been excludedfrom the original proceedings.33°La Forest J. went on to observe in obiter that if the statementshad in fact affected the fairness of the trial, he would have had “no difficulty” in rejecting theevidence, not under ss. 24(1) or 24(2), but rather “[o]n the basis of the trial judge’s duty, nowconstitutionalized by the enshrinement of a fair trial in the Charter, to exercise properly his or herjudicial discretion to exclude evidence that would result in an unfair trial.”33’Thus, the Justicewould have excluded the evidence under the auspices of s. 11(d) of the Charter, which, in LaForest J. ‘ s view, has transformed the judge’s common law discretionary power to excludeevidence that would render a trial unfair into “[a] constitutional imperative.”332In a concurring judgment, McLachlin J. (as she then was) agreed with La Forest J.’scontention that evidence obtained in a manner that did not technically run afoul of the Chartercould be excluded from proceedings if such a step was necessary to ensure a fair trial. However,rather than employing s. 11(d) to exclude in those circumstances, McLachlin J. would haveresorted to s. 24(1). In this regard the Justice ruled:[e]vidence not obtained in breach of the Charter but the admission of which may undermine theright to a fair trial may be excluded under s. 24(1), which provides for “such remedy as the courtconsiders appropriate and just in the circumstances” for Charter breaches. Section 24(1) applies toprospective breaches, although its wording refers to “infringe” and “deny” in the past tense.. . Itfollows that s. 24(1) permits a court to exclude evidence which has not been obtained in violationof the Charter, but which would render the trial unfair contrary to s. 11(d) of the Charter.I conclude that a judge may exclude evidence which was not obtained by Charter breach but whichwould render the trial unfair either at common law or under s. 24(1) of the Charter. The debate327Ibid atpara. 13.328Ibid atpara. 14.329Ibid atpara. 15.Ibid at paras. 19-20.331Ibid atpara. 21.332Ibid at para. 24.76thus shifts to the third premise of the appellant’s argument -- that toadmit Harrer’s secondstatement would render the trial unfair.333In McLachlin J.’s view, then, the residual authority to exclude evidence in caseswhere itsadmission would not specifically trigger s. 24(2) but would nonetheless negatively impactuponthe fairness of a trial is derived from s. 24(1) rather than solelyfrom any of the Charter ‘ssubstantive rights sections. McLachlin J.’s opinion in this regard wassubsequently endorsed by amajority of the Supreme Court in R. v. White.334 However, it is important to note that the Courthas not yet seen fit to extend this residual power to cases where anapplication to exclude thesame evidence under s. 24(2) has failed. The power remains strictly limited to situations in whichthe regular exclusionary mechanism is inapplicable because no Charter violation has beenestablished. Thus, the exclusion of unconstitutionally obtained evidence remains within the solepurview of s. 24(2).3.4. Excluding evidence under s. 24(2)The Supreme Court of Canada has clearly established that the exclusion of illegally obtainedevidence is to be accomplished primarily by way of application pursuant to s. 24(2) of theCharter. Given the significant role played by s. 24(2) in the overall effectiveness of theCharter ‘s core legal rights, it is perhaps unsurprising that the section has generated an enormousbody of judicial treatment. It did not take long for the inevitable issues surrounding theinterpretation and application of the relatively vague evidential exclusionary mechanism to reachthe Supreme Court of Canada. The national high court made its first significant pronouncementon the issue only three years after the Charter came into force. The stream of cases seeking tofurther clarify the Supreme Court’s various interpretations of the remedial section has continuedwith only minimal abatement up to the present day. As will be seen, despite the amount ofjudicial treatment given to s. 24(2), the Supreme Court’s reconsiderations of the section haveremained relatively consistent with its initial decisions.It was clear virtually from the date of the Charter ‘s proclamation that litigation under s.24(2) would inevitably lead to controversy. Professor Don Stuart has charted the considerabledisagreement that arose between provincial appellate courts regarding the proper role of the newexclusionary mechanism before the Supreme Court of Canada began to develop its s. 24(2)jurisprudence.335 While the British Columbia Court of Appeal’s early decisions attempted toIbicL at paras. 42-43 [footnotes omitted].[1999] 2 S.C.R. 417, 174 D.L.R. (4th) 111.Stuart, Charter Justice, supra note 52, at 476-477.77ensure that exclusion would occur only in rare instances,336 theOntario Court of Appeal soughtto provide the foundation for a broad application of s. 24(2) asa remedial mechanism.337 Thecontroversy among provincial appellate courts was soon resolved by the Supreme Courtin favorof the position then dominant in Ontario,338 thereby clearing the way for s. 24(2)’sinterpretational controversy to be dealt with by the Supreme Court.3.4.1. R. v. TherensThe decision in Therens339 represented the Supreme Court of Canada’s first attempt at creatingan overarching methodology for the application of s. 24(2). The case originated out of a trafficaccident involving a motor vehicle operated by the accused. When the investigating officerarrived on the scene, he formed the suspicion that the accused had consumed alcohol prior tooperating his vehicle and becoming involved in the accident. Having reasonable and probablegrounds to do so, the officer issued a demand under s. 235(l)° [now s. 254(3)] of the CriminalCode34’instructing the accused to accompany him to a police station to provide two breathsamples to a qualified technician.342 The accused complied with the demand, accompanied theofficer to the police station and provided the necessary samples. He was then charged with anoffence under s. 236(l) [now s. 253(b)]. At no time during this preliminary investigation didthe officer arrest the accused or inform him of his Charter right to retain and instruct counsel.344Although this fact scenario is quite common, both the officer’s investigation of theaccused and the eventual judicial determination of the case were complicated by the relativenovelty of Charter litigation at the time. When Therens was heard, the Supreme Court had yet toestablish any foundational rules governing the right to counsel as it existed under the Charter.Although there had been significant judicial treatment of the issue under the Canadian Bill of336Ibid. at 477.Ibid at 478.338Ibid. at480.Therens, supra note 97.Criminal Code, R.S.C. 1970, c. C-34 at s. 235(1) [Criminal Code 1970].341Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code].342In its entirety, s. 23 5(1) read: Where a peace officer on reasonable and probable grounds believes that a person iscommitting, or at any time within the preceding two hours has committed, an offence under section 234 or 236, hemay, by demand made to that person forthwith or as soon as practicable, require him to provide then or as soonthereafter as is practicable such samples of his breath as in the opinion of a qualified technician referred to insubsection 23 7(6) are necessary to enable a proper analysis to be made in order to determine the proportion, if any,of alcohol in his blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.Under s. 236(1), it is a criminal offence for a person to operate a motor vehicle “while having consumed alcoholin such quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 milliliters ofblood”.Therens, supra note 97, at para. 30.78Rights,345 the advent of s. 10(b) presented the Court withan opportunity to establish a freshapproach to the concept. Thus, the substantial body of pre-Charter case law pertaining to theright to counsel did little to clarify the issue. Moreover, the Supreme Courthad yet to specificallyanalyze the treatment of illegally obtained evidence under s. 24(2). Therens thus requiredconsideration of several novel legal issues, which remained consistent before both the Court ofAppeal and the Supreme Court of Canada.The Supreme Court’s eventual determination of these issues was somewhat complicatedby the unusual split amongst the eight justices346 who participated in the decision. The first issuedealt with by the Court was whether there had been an infringement of the accused’s right tocounsel. The main point of contention here involved the triggering mechanism contained within10(b).347 As is clear from the express wording of that section, the Charter limits theapplication of s. 10(b) to individuals who are either under arrest or are being detained by anagent of the state. Although situations involving an “arrest” will be relatively straightforward, theconcept of “detention” is far more ambiguous, as can be seen from the convoluted judicialtreatment of the term during the pre-Charter era.348 In defining “detention” as it is used in thecontext of s. 10(b), the Court unanimously held that the investigating officer had detained theaccused by issuing the demand under s. 235(1). Furthermore, the Court ruled that both theofficer’s failure to provide the accused with an opportunity to contact counsel, and his failure toinform the accused of that right, constituted violations of s. 10(b).350 The Supreme Court wasthus unanimous in determining that the accused’s s. 10(b) rights had been engaged andviolated.35’The panel then turned its collective attention to the remedies available under s. 24 of theCharter. Consideration of this section raised two issues. First, the Court disagreed with both theS.C. 1960, c. 44 [Bill ofRights].346Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dam JJ. took part in the writtenjudgment. Although Ritchie J. also heard the appeal, he took no part in the fmal judgment.Charter, supra note 36, s. 10. The relevant portion reads: “Everyone has the right on arrest or detention. . . (b) toretain and instruct counsel without delay and to be informed of that right[.]”Under the Bill ofRights, the Supreme Court of Canada interpreted the concept of “detention” narrowly, holdingthat it referred to situations of “actual physical restraint” and was tantamount to “held in custody”: see Chomiak v.The Queen, [1980] 1 S.C.R. 471, 102 D.L.R. (3d) 368.Therens, supra note 97, see per Dickson C.J. at para. 1, per Beetz, Estey, Chouinard and Wilson JJ. at para. 6,and per McIntyre, Lamer, and Le Dam JJ. at paras. 14, 17, and 54.Although the panel unanimously held that the accused’s s. 10(b) rights had been violated, the Justices’ opinionswere split into two equal groups on the issue of exactly how the violation occurred. See ibid., paras. 6-7, 49-50, 53.351Ibid. The Court also examined whether s. 1 of the Charter could be applied to save the s. 10(b) violation,unanimously ruling that s. 1 was not invoked in the circumstances. Perhaps unsurprisingly, the court disagreed as tothe reasons why it was not triggered. See per Dickson C.J. at para. 1, per Beetz, Estey, Chouinard, Wilson andLamer JJ. at para. 10, per McIntyre and Le Dam JJ. at para. 56.79trial court and the Court of Appeal,352 and ruled that there isno discretion to exclude evidenceunder s. 24(1) as a remedy “appropriate and just in thecircumstances.”353 This ruling created asecond interpretational issue related to s. 24: if the exclusion ofillegally obtained evidence islimited to s. 24(2), in what circumstances does that subsection operate? The Court was thereforerequired to give specific meaning to the broad language of s. 24(2), and tothen apply thatlanguage to the facts before them. The panel ultimately split 6-2 on the issue, with the majorityruling that the evidence had been properly excluded at trial. The dissent would have allowed theevidence despite the fact that it was obtained in violation of the accused’s s. 10(b) rights.The decision of the six Justice majority was written by Estey J. and agreed upon byDickson C.J., Beetz, Chouinard, Wilson and Lamer JJ. However, as Estey J. agreed with the bulkof Le Dam J.’s dissenting reasons354 insofar as they pertained to the interpretation of s. 24(2), themajority reasons dealt with the issue in a relatively brief fashion. As will be seen, although themajority split with the dissenting Justices primarily on the application of s. 24(2) to the facts ofthe case, they did not disagree with Le Dam J. ‘s actual explication of the section. Though brief,Estey J. ‘s opinion is nonetheless important, particularly for its discussion of the fact that theimpugned evidence was necessarily excluded under s. 24(2) because the Charter violation was“overt”. On this point, Estey J. ruled that “[tb do otherwise than reject this evidence on the factsand circumstances in this appeal would be to invite police officers to disregard Charter rights ofthe citizen and to do so with an assurance of impunity.”355 Estey J. was therefore primarilyconcerned with the severity of the rights violation and with the desirability of ensuring thatfuture instances of similar police misconduct would be sufficiently deterred.Another notable feature of Estey J. ‘s reasons is his implied assertion that s. 10(b)violations are of inherently greater concern than are violations of the other core legal rights. Thisassertion is evident from the following passage: “[tlhe violation by the police authority of afundamental Charter right, which transpired here, will render this evidence inadmissible.Admitting this evidence under these circumstances would clearly ‘bring the administration ofjustice into disrepute’,356This observation could either have been a benign reference to the factthat all Charter rights are important, or it could represent any early manifestation of the Supreme352Ibid at paras. 32, 58.Ibid The Court split 6-2 in favour of limiting the exclusion of evidence to s. 24(2). For the majority opinion, seepara. 60. For the minority on this point, see per Dickson C.J. at para. 3, and per Lamer J. at para. 25.Ibid atpara. 5.Ibid atpara. 11.Ibid. at para. 12 [emphasis added].80Court’s creation of a hierarchy of core legal rights in which s. 10(b)occupies a position ofparamount importance. The latter scenario is problematic as Estey J.’s reasons contain noexplicit explanation as to why s. 10(b) violations ought to be treatedmore seriously thanviolation of other, apparently less fundamental Charter rights. As the later Supreme Courtjurisprudence on s. 24(2) would soon demonstrate, there would indeed come to be a hierarchy ofcore legal rights, and s. 10(b) violations would figure prominently in the final ordering.The bulk of the Court’s treatment of s. 24(2) is contained in the dissenting judgment ofLe Dam J., with whom McIntyre J. concurred. Although Le Dam J. dissented on the applicationof s. 24(2) to the specific facts of the case, the majority of the Justices agreed with hisinterpretation of the exclusionary mechanism. Only Dickson C.J. and Lamer J. specificallydisagreed with Le Dam J.’s discussion of s. 24(2)’s language.357 Thus, the Supreme Court ofCanada first treatment of s. 24(2) came in large part through a dissenting judgment. Regardless,Le Dam J. began his opinion with a careful analysis of the wording of s. 24(2), dealing first withthe section’s triggering mechanism.358 The language of the section stipulates that beforeexclusion can be contemplated, the applicant must demonstrate that the impugned evidence wasobtained “in a manner” that involved a rights violation. In interpreting this phrase, Le Dam J.ruled that the rights violation need not be the direct source from which the impugned evidencewas obtained, holding that it would be sufficient if the violation simply occurred prior to theevidence being acquired, or during the course of the evidence gathering process.359 Therefore,rather than incorporating a strict “causal” requirement into the s. 24(2) case law, Le Dam J.established that a less onerous “temporal” link would in fact be sufficient.A unanimous Supreme Court in R. v. Strachan later conclusively incorporated thetemporal link requirement articulated by Le Dam J. into the s. 24(2) jurisprudence.360 In thatcase, Dickson C.J. rejected the argument that a strict causal connection between the rightsviolation and the actual securing of the evidence was necessary, deciding instead that all that wasrequired to trigger s. 24(2) was a sufficient temporal link. On this point, Dickson C.J. ruled:[a] causation requirement ... leads to a narrow view of the relationship between a Charterviolation and the discovery of evidence. Requiring a causal link will tend to distort the analysis ofthe conduct that led to the discovery of evidence. The inquiry will tend to focus narrowly on theactions most directly responsible for the discovery of evidence rather than on the entire course ofIbid , see per Dickson C.J. at para. 2, and per Lamer. J. at para. 19.358Ibid. atpara. 61.Ibid. at para. 62. On the issue of temporal connection, Estey 3. stated [at para. 12], “I recognize, however, that inthe case of derivative evidence, which is not what is in issue here, some consideration may have to be given inparticular cases to the question of relative remoteness.”360[1988] 2 S.C.R. 980, 67 C.R. (3d) 87 [Strachan cited to S.C.R.].81events leading to its discovery. This will almost inevitably lead to anintellectual endeavouressentially amounting to “splitting hairs” between conduct that violated theCharter and that whichdid not.36’Dickson C.J. thus concluded that provided that the temporal connectionbetween the violationand the taking of the evidence was not “too remote”, s. 24(2)would be triggered and theevidence would be vulnerable to potential exclusion. The exact details of the temporalconnection were to be analyzed on a case-by-case basis.362Returning to the decision in Therens, Le Dam j.’5judgment moved on from the temporallink issue to consider the meaning of the word “disrepute”, deciding first that other expressionsor tests should not be substituted for the express wording of s.24(2).363The Justice then providedthe context in which s. 24(2) was to be interpreted, stating that:[t]he central concern of s. 24(2) would appear to be the maintenance of respect for and confidencein the administration ofjustice, as that may be affected by the violation of constitutional rights andfreedoms. There is clearly, of course, by implication, the other value which must be taken intoconsideration in the application of s. 24(2) -- that is, the availability of otherwise admissibleevidence for the ascertainment of truth in the judicial process, particularly in the administration ofthe criminal law.364In Le Dam J.’5 opinion, then, the primary purpose of s. 24(2) is to protect the administration ofjustice from the disrepute that may flow from a Charter violation. The Justice alsoacknowledged that use of the exclusionary mechanism to achieve this purpose must beconsidered in light of the inherent value in allowing the Crown to use all relevant and probativeevidence to determine the truth. Le Dam J. ultimately ruled that “[t]he issue under s. 24(2) is thecircumstances in which [the truth finding function] must yield to the protection and enforcementof constitutional rights and freedoms by what may be in a particular case the only remedy.”365Based on this articulation of s. 24(2)’s overarching purpose, Le Dam J. then set out whatwas intended to be an instructive, non-exhaustive list of the circumstances and factors that mustbe considered when applying the section to actual fact scenarios. In relation to s. 8 violations, LeDam J. established “two principal considerations”: the seriousness of the violation and theseriousness of the offence. The Justice stated that the former criteria was to be assessed bydetermining whether the violation was committed in good faith, inadvertent, or merely technical361Ibid. at para. 40.362Ibid at para. 46.363In Rothman v. The Queen, [1981] 1 S.C.R. 640, 121 D.L.R. (3d) 578, Lamer J. referred to the “communityshock” test in his discussion of then s. 178.16 of the Criminal Code. That section allowed a judge to reject evidencederived from intercepted communications if the admission of that evidence “would bring the administration ofjustice into disrepute”. Lamer 3. held that such disrepute would flow from police conduct that shocked thecommunity.364Therens, supra note 97, at para. 71.365Ibid. atpara. 71.82in nature, or whether it was deliberate, willfulor flagrant. Also relevant to the seriousness of theviolation was whether it was committed out of urgency or necessityregarding the need toprevent the loss or destruction of the evidence.366 These factors were to be balanced with theseriousness of the charge in order to determine whether the admission of the evidence wouldresult in disrepute.367After establishing the basis on which disrepute could be ascertained, Le Dam J. expresslyruled that the necessary balancing of values under s. 24(2) ought to be adjusted in the context ofa s. 10(b) violation. On this point, the Justice held:[t]he application of these factors to a denial of the right to counsel involves, in my view, adifferent balance because of the importance of that right in the administration of criminal justice.In my opinion, the right to counsel is of such fundamental importance that its denial in a criminallaw context must prima facie discredit the administration ofjustice.368This opinion is striking similar to that of Estey J. in that it suggests that s. 10(b) is at the upperend of a implicit hierarchy of Charter rights. According to Le Dam J.’5, any violation of anaccused person’s right to counsel automatically brings the administration ofjustice into disreputeunless the Crown can successfully rebut such a presumption. This clearly differentiates s. 10(b)from other Charter rights where the accrual of disrepute is by no means automatic.Le Dam J. concluded his discussion of s. 24(2) with two additional important rulings,stating first that the repute of the justice system was not to be gauged by reference to publicopinion. The Justice made this observation largely because he felt that there was no reliablesource from which to obtain accurate information regarding the public’s feelings about excludinga particular piece of evidence from a particular criminal trial.369 Rather, Le Dam J. ruled that thejudiciary was in the best position to determine whether the admission of specific evidence wouldcause the accrual of disrepute.37°Lastly, Le Dam J. stated that strictly speaking, there was no“discretion” to exclude evidence under s. 24(2). Rather, if the presiding judge was of the opinionthat the admission of certain evidence would bring the administration ofjustice into disrepute, heor she is under a duty to exclude that evidence.37’The judgments authored by Estey J. and Le Dam J. ultimately part ways in theirassessment of how to apply the s. 24(2) methodology to the specific facts of the case. WhereasEstey J. ruled the evidence had been properly excluded at trial, Le Dam J. decided that the366Ibid. atpara. 72.367IbicL3681bic1 atpara. 73.369Ibid at para. 74.Ibid. at para. 74.371Ibid. at para. 74.83evidence was admissible, primarily because of the confusion created by the Supreme Court’spre-Charter decisions pertaining to the right to counsel. On this point, Le Dam J. held:[t]he police officer in this case was in my opinion entitled to assume in good faith that therespondent did not have a right to counsel on a demand under s. 23 5(1) of the Criminal Code.Because of this good faith reliance, I am unable to conclude, having regard to all thecircumstances, as required by s. 24(2) of the Charter, that the admission of the evidence of thebreathalyzer test in this particular case would bring the administration ofjustice into disrepute.372Thus, despite establishing s. 10(b) as a right of crucial importance in the criminal law context, LeDam J. was content to admit evidence obtained in flagrant violation of that right as probative ofthe accused’s guilt. It follows from his conclusion that in the Justice’s opinion, the seriousness ofthe Charter violation was significantly vitiated by the good faith of the officer involved. Thisvitiation was persuasive in spite of the fact that, in the Justice’s own words, exclusion ofevidence may have been the “only remedy” available.The decision in Therens thus established two main points regarding the interpretation andapplication of s. 24(2): first, illegally obtained evidence can only be excluded under s. 24(2); andsecond, the section must be interpreted so that it strikes an appropriate balance between theprotection of Charter rights and the truth-seeking function of the criminal trial process. It alsomade a number of less obvious points, including the implicit creation of a hierarchy of Charterrights in which s. 10(b) was placed in a position of prominence. The decision was somewhatcomplicated by the fact that only eight of the nine presiding Justices issued reasons and becausethe Justices who did render decisions split along different lines on different issues. Despite thesecomplexities, the Supreme Court’s decision in Therens laid the foundation for the subsequentconsideration of the test under s. 24(2). Moreover, the divisions and disagreements amongst theJustices shed light on the difficulties that would inevitably occur in future interpretations of thesection.3.4.2. R. v, CollinsTwo years after issuing its ruling in Therens, the Supreme Court rendered its decision inCollins,373 which is still widely considered the leading interpretation on s. 24(2). The accusedin Collins impugned a search carried out against her by police officers engaged in surveillance ofa known drug exchange site.375 When the officers arrested the accused’s husband after he left the372Ibid atpara. 73.Collins, supra note 52.See e.g. R. v. Clayton, 2007 SCC 32, 281 D.L.R. (4th) 1 [Clayton].Collins, supra note 52, at para. 4.84same location only moments earlier, they discovered narcotics on his person.376 Theofficers thenreturned to the location of the original surveillance andimmediately proceeded to arrest theaccused. At a “quickened pace”, the arresting officer approached the accused, informedher thathe was a police officer, grabbed her by the throat to prevent her from swallowing any drugsthatmay have been in her mouth, and threw her to the ground. Once the accused was on the groundwith the officer on top of her, a balloon containing cocaine was located in one of her hands.377At trial, it was determined that the police had violated Collins’ rights under s. 8 of theCharter, primarily due to the fact that the officer did not have reasonable grounds to believe thatshe was in possession of narcotics prior to executing the search. However, the trial judge refusedto exclude the evidence under s. 24(2) after determining that its admission at trial would notshock the community’s conscience.378 The Court of Appeal agreed with the trial judge’sconclusion regarding the appropriate treatment of the evidence, and therefore refused theaccused’s appeal.379 On further appeal to the Supreme Court of Canada, Lamer J. agreed that therecord contained no evidence regarding the reasonableness of the officer’s belief that the accusedwas in possession of narcotics. Writing for a majority of the Court, the Justice therefore endorsedthe decision of the lower courts that there had in fact been a violation of s. 8380Lamer J. then discussed the application of s. 24(2), and in so doing created what isessentially still the benchmark tripartite test for the application of the Charter ‘s exclusionarymechanism. He began his discussion of the issue by acknowledging that s. 24(2) was intended totake an intermediate position with regard to the exclusion of illegally obtained evidence,rejecting both the Canadian common law position of what was tantamount to automaticinclusion, and the American position of automatic exclusion.38’Lamer J. also clarified that theaccused bears the “burden of persuasion” on a balance of probabilities with regard to provingthat exclusion of the evidence is necessary to prevent the administration of justice from beingpotentially brought into disrepute.382 The Justice further ruled that s. 24(2) was not intended toremedy illegal investigative steps taken by the police, even if those steps actually brought the3761bkL atpara. 5.ribid. at para. 6.378ib1c1 atparas. 11-12.3791bic1 atparas. 15-16.°ibid. at paras. 25-27. On this point, Lamer 3. ruled that the record was deficient because of an improper objectionby defence counsel regarding the use of hearsay evidence to establish reasonable grounds for the search. Lamer J.also observed that the record was deficient on how the trial judge ruled on the objection. As a result of thesedeficiencies, the majority would have ordered a new trial. Lamer 3. nevertheless went on to analyze the lower courts’treatment of s. 24(2).‘Ibid. at para. 29.Ibid atpara. 30.85administration ofjustice into disrepute. Instead, Lamer J. held that s. 24(2) was solely concernedwith the “further” disrepute flowing from the admission at trial of the endproduct of those illegalsteps.383Picking up on a notion articulated by Le Dam J. in Therens, Lamer J. adopted the“reasonable person” test when instructing judges on how to measure the repute of theadministration ofjustice. Although Lamer J. acknowledged that public opinion necessarily playssome role in the concept of disrepute, he rejected the idea that such views ought to bedeterminative of an application pursuant to s. 24(2), stating “[tJhe Charter is designed to protectthe accused from the majority, so the enforcement of the Charter must not be left to thatmajority.”384 Instead, the Justice ruled that in applying s. 24(2), judges must determine whetherthe admission of evidence would bring the administration ofjustice into disrepute “[un the eyesof the reasonable man, dispassionate and fully apprised of the circumstances of the case.”385Lamer J. further observed that the “[r]easonable person is usually the average person in thecommunity, but only when that communitys current mood is reasonable.”386It is also important to note that Lamer J. also established that the accused need not provethat admission of the evidence “would” bring the administration of justice into disrepute, butmerely that it “could” have that effect. The Justice reached this conclusion by comparing theEnglish and French versions of s. 24(2), and concluding that “[a]s one of the purposes of s. 24(2)is to protect the right to a fair trial, I would favour the interpretation of s. 24(2) which betterprotects that right, the less onerous French text.”387 Thus the English version of the section wasessentially “read down” to lower the persuasive burden resting with the accused. The SupremeCourt arguably had no choice but to do so as requiring the accused to prove that theadministration ofjustice “would” be brought into disrepute by the admission of certain evidencewould be all but impossible in the overwhelming majority of cases. Thus, to prevent the utility ofs. 24(2) from being significantly reduced, the Court was stepped in to fix what may have beensimply a error in drafting.The heart of the judgment in Collins is comprised of Lamer J.’s interpretation of thephrase “having regard to all the circumstances” as it is employed in the text of s. 24(2). In383IbicL atpara. 31.Ibid at para. 32.385 Ibid atpara. 33.386Ibid. at paras 33-34. Lamer J. specifically adopted the version of the test suggested by Yves-Marie Morissette.See Morissette, supra note 51, at 538.387Collins, ibid at para. 43.86defining the term, Lamer J. set out a non-exhaustive list388of factors for judges to consider, andthen grouped those factors into three broad categories.Despite initially being described as a setof guidelines,389 Lamer J.’s categorization of factors has been subsequentlyinterpreted asestablishing the authoritative methodology for all s. 24(2) applications. The three categories are:(i) factors that affect trial fairness;390 (ii) those that relate tothe seriousness of the violation;39’and (iii) factors relating to the effects of excluding the evidence.392 With regard to the firstcategory, Lamer J. ruled:[t]he trial is a key part of the administration of justice, and the fairness of Canadian trials is amajor source of the repute of the system and is now a right guaranteed by s. 11(d) of the Charter.If the admission of the evidence in some way affects the fairness of the trial, then the admission ofthe evidence would tend to bring the administration of justice into disrepute and, subject to aconsideration of the other factors, the evidence generally should be excluded.393Lamer J. then distinguished between “real” and conscriptive evidence, concluding that admissionof the former would rarely affect trial fairness, while admission of the latter would almost alwaysdo so, primarily because the accused does not play the same role in creating real evidence as theydo in creating conscriptive evidence.394 The Justice also noted “[ut may also be relevant, incertain circumstances, that the evidence would have been obtained in any event without theviolation of the Charter.”395 The Justice also ruled that if trial fairness is negatively affected byadmission of certain evidence, that evidence can never be deemed admissible merely because ofthe seriousness of the offence to which it relates.396The second category outlined by Lamer J. deals with the seriousness of the Charterviolation alleged against the police, and therefore “[tjhe disrepute that will result from judicialacceptance of evidence obtained through that violation.”397 In this regard, the relevant criteriainclude: (i) whether the violation was committed in good faith, was inadvertent, or was technicalin nature; (ii) whether the violation was deliberate, willful or flagrant; (iii) whether the actionconstituting the violation was motivated by urgency or necessity in preventing the loss ordestruction of evidence; and (iv) whether other non-violative investigatory techniques could have388Ibid at para. 35.3891bic1 at para. 41.3901bic1 at para. 36.391Ibid at para. 38.392Ibid at para. 39.Ibid at para. 36.Ibid at para. 37.Ibid396Ibid at para. 39.Ibid atpara. 38.87been employed to obtain the evidence.398 Lamer J.specifically acknowledged that the availabilityof non-violative techniques would be a factor in favour ofexclusion as it would indicate thepolice proceeded with “[a] blatant disregard for the Charter . ..The third category of factors deals with the effect that exclusion of the evidence wouldhave on the repute of the justice system. Lamer J. found that the determination under thiscategory has to do with ascertaining “[w]hether the system’s repute will bebetter served by theadmission or the exclusion of the evidence‘.“°°More specifically, the Justice held thatexclusion of evidence would tend to result in disrepute if the evidence is integral to theprosecution and the breach by which it was obtained was trivial. Lamer J. also noted that in thesecircumstances, the disrepute associated with exclusion would tend to increase in proportion tothe seriousness of the offence, and that exclusion would be more common in relation to lessserious instances.40’Despite its relative brevity, the 6-2 majority decision in Collins answered a number ofimportant questions regarding s. 24(2) raised in the aftermath of Therens. It was established thatdisrepute is to be judged through the employment of the “reasonable person” test. Further, LamerJ. ruled that in order to be successful on a s. 24(2) application, the accused need not show that theadmission of the impugned evidence would result in disrepute, but only that it could result indisrepute. Although many of the rulings in Collins continue to be of importance, the core of thedecision remains the tripartite categorization of factors relevant to the admissibility assessmentunder s. 24(2). These include factors that relate to trial fairness, those that involve the seriousnessof the violation, and factors that manifest themselves in the effects of exclusion. Lamer J. ‘s threecategories now constitute the standard methodology employed in determining all s. 24(2)applications.3.4.3. R. v. StilimanDespite the Supreme Court’s significant clarification of the relevant jurisprudence in Collins,Lamer J. ‘ s test for the application s. 24(2) was differentially interpreted and applied over thecourse of the next ten ears. Writing for a majority of the Court in Stillman,402 Cory J. observedthat:398Ibid.399Thid4001bic1 at para. 39.401IbicI402Stiliman, supra note 50.88[t]here can be no question that the Collins decision was the pathfmder that first charted the routethat courts should follow when considering the application of s. 24(2). However, subsequentdecisions of this Court and their interpretations by the courts below indicate that a further plottingof the course for courts to follow is required, while maintaining the basic principles outlined inCollins.403With this statement, the Stiliman majority clearly identified its intention to further clarify s. 24(2)by explaining how to properly apply Collins. The Court did not intend to overrule or replace theCollins test.Stillman involved the sexual assault and murder of a 14-year old girl, a crime committedsometime after a gathering of young people during which drugs and alcohol were consumed. The17-year old male accused and the victim were seen leaving the party together.404 The victim’sbody was found six days later, and a least one eyewitness placed the accused near where thebody was found on the night of the murder.405 An autopsy later indicated that the victim had beensexually assaulted and bitten on the abdomen, and that the cause of death was blunt force traumato the head.406 The accused was subsequently arrested and brought to police headquarters forquestioning. Before he was interviewed, the accused’s lawyers indicated in writing that he didnot consent to giving a statement, bodily samples or dental impressions.407 However, after theaccused’s lawyers left, the police took samples of the accused’s hair and impressions of his teethunder threat of force.408 The accused was also subjected to an hour-long interview during whichthe accused “sobbed” constantly. He did not, however, make a statement. At one point duringquestioning, he was permitted to use the bathroom, where he blew his nose into a tissue, whichwas then discarded in a waste bin. The police seized the tissue and used it to secure a DNAsample from the accused.409 Despite these actions, the Crown prosecutors’ office decided thatthere was insufficient evidence on which to base a murder charge, and the accused was thereforereleased.41°When the police received the DNA results and the dental impressions, the accusedwas re-arrested, and the police attempted to secure more conclusive dental impressions bysubjecting him to a 2-hour long dental procedure to which the accused did not consent. Thepolice took further hair samples, and also secured a saliva sample and buccal swabs.41’4031bic1 atpara. 71.4041b1c1 at para. 2.4051bicL atpara.3.406IbicL at para. 4.4071bic1 atpara. 5.408Ibid at para. 6.Ibid. at para. 7.410Ibid. atpara. 8.4HIbid atpara. 9.89The evidence obtained by police was eventually deemed admissible by the trial judge,and the accused was convicted of first-degree murder.412 The trial judge found thatalthoughsome of the evidence was obtained in violation of the accused’s Charter rights under s. 8, it wasnevertheless admissible under s. 24(2) as it was real evidence that did not impact the fairness ofthe trial.413 A majority of the New Brunswick Court of Appeal dismissed the accused’s appeal,holding that although portions of the evidence were taken in violation of the accused’s s. 8 rights,its obtainment involved only a minimal affront to his dignity, it was not secured using undueforce, and the investigatory techniques were reasonable in light of the seriousness of thecharge.414 The dissenting Justice ruled that all of the impugned evidence was secured in violationof the accused’s Charter rights, and that it should have been excluded under s. 24(2) due to theseriousness of the violations, the fact that the police effectively compelled the accused intoincriminating himself, and because the evidence could have been obtained in an alternativemanner that would not have violated the Charter.415 The accused appealed the Court of Appeal’smajority ruling to the Supreme Court of Canada.There were two central issues before the Supreme Court: (i) whether the police violatedthe accused’s Charter rights in obtaining the evidence; and if so (ii) whether the evidenceobtained in violation of the Charter ought to have been excluded under s.24(2).416With regardto the first issue, the majority ruled through Cory J. that although the arrest of the accused waslawful,417 the warrantless seizure of his hair samples, dental impressions and buccal swabs couldnot be justified by the common law power of search incidental to arrest,418 and that as a result,the accused’s rights under ss. 7 and 8 were “very seriously” violated.419 The majority alsodecided that because the accused did not “abandon” the tissue that he discarded while in policecustody42°and did not consent to its being seized,42’the police obtained the tissue in violation ofs.8.422412Ibid atparas. 10-11.413 Ibid atparas. 12-14.414Ibid atparas. 16-18.415 Ibid atparas. 19-22.416Ibid at para. 24.417Ibid. at para. 32.418Ibid at paras. 47-49.419Ibid atparas. 50-51.420Ibid. atpara. 58.421Ibid. atparas. 60-61.422Ibid atpara. 63.90The majority423 then turned its attention to the issue of admissibility under s. 24(2),dealing first with the hair samples, dental impressions and buccal swabs. In so doing,Cory J.first endorsed the categorical approach taken by Lamer J. in Collins,424and then attempted toclarify the analysis to be undertaken at each step. With regard to theinitial set of factors, i.e.those relating to the fairness of the trial, Cory J. ruled that if a judge determines that theadmission of certain evidence would render a trial unfair, it becomes unnecessary to consider theremaining Collins factors.425 Thus, the trial fairness analysis is integral to the adjudicationprocess under s. 24(2). In discussing the importance of the trial fairness category, the majorityobserved that:[t]he primary aim and purpose of considering the trial fairness factor in the s. 24(2) analysis is toprevent an accused person whose Charter rights have been infringed from being forced orconscripted to provide evidence in the form of statements or bodily samples for the benefit of thestate. It is because the accused is compelled as a result of a Charter breach to participate in thecreation or discovery of self-incriminating evidence in the fonn of confessions, statements or theprovision of bodily samples, that the admission of that evidence would generally tend to render thetrial unfair. That general rule, like all rules, may be subject to rare exceptions.426As a result, Cory J. indicated that the first step in the trial fairness analysis ought to be theclassification of the evidence as either conscriptive or non-conscriptive. If the evidence isdefined as conscriptive, it generally affects trial fairness, and thus the s. 24(2) analysis comes toan end. Conversely, if the evidence is classified as non-conscriptive, the judge should considerthe other Collins factors.427 Therefore, the characterization of the evidence is of crucialsignificance to admissibility.In defining the two types of evidence, Cory J. ruled that “[i]f the accused was notcompelled to participate in the creation or discovery of the evidence (i.e., the evidence existedindependently of the Charter breach in a form useable by the state), the evidence will beclassified as non-conscriptive. The admission of evidence falling into this category will, assuggested in Collins, ... rarely operate to render the trial unfair.”428 Though this aspect of theruling represented nothing new, Cory J. went on to state that “real” evidence is not alwaysproperly defined as non-conscriptive. On this point, the Justice ruled:423The majority judgment was accompanied by four additional opinions, two of which were lengthy dissents byL’Heureux-Dube and McLachlin JJ. Gonthier and Major JJ. also wrote short opinions. See Stiliman, ibicL, perL’Heureux-Dube J. at paras. 130; McLachlin J. at para. 194; Gonthier J. at para. 193; and per Major J. at para. 273.424Ibid. atpara. 69.425Ibid. at para. 72.426Ibid. atpara. 73.427Ibid at para. 74.428Ibid at para. 75.91[t]here is on occasion a misconception that “real” evidence, referring to anything which istangibleand exists as an independent entity, is always admissible. It is for this reason that blood,hairsamples or the identity of the accused are often readily, yet incorrectly, classified as “real evidenceexisting independently of the Charter breach”. It is true that all of theseexamples “exist” quiteindependently of a Charter breach. Yet, it is key to their classjfication that they do not necessarilyexist in a useableform. For example, in the absence of a valid statutory authority or the accused’sconsent to take bodily samples, the independent existence of the bodily evidence is of no use tothe prosecution since there is no lawful means of obtaining it.429Cory J. therefore determined that the conscriptive/non-conscriptivedistinction does not dependon whether evidence is “real”, but rather on “[w]hether the accused was compelled to make astatement or provide a bodily substance in violation of the Charter.”43°The Justice then specifically distinguished