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Redefining disrepute : acknowledging social injustice and judicial subjectivity in the critical reform… Hauschildt, Jordan William Derek 2008

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REDEFINING DISREPUTE: ACKNOWLEDGING SOCIAL INJUSTICE AND JUDICIAL SUBJECTIVITY IN THE CRITICAL REFORM OF SECTION 24(2) OF THE CHARTER by JORDAN WILLIAM DEREK HAUSCHILDT B.A. (Hons.), The University of Toronto, 2001 LL.B., Queen’s University (Kingston), 2004 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) August 2008 © Jordan William Derek Hauschildt, 2008 ABSTRACT On April 17, 1982, the Canadian Charter ofRights and Freedoms was proclaimed into force. By including a set of constitutionally entrenched core legal rights (i.e. ss. 8, 9, and 10(b), and a remedial mechanism designed to enforce those rights (i.e. s. 24(2)), the Charter had the potential to alter certain repressive elements of the criminal justice system that had endured in Canada for over a century. Despite this potential, both the core legal rights and s. 24(2) were drafted using vague terminology. As a result, the Charter ‘s ability to succeed where previous attempts at instituting effective due process protections for Canadians had failed would depend largely on the 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 the exclusion of unconstitutionally obtained evidence under s. 24(2) that fails to adequately protect the core legal rights of the socially, racially and economically marginalized individuals to whom the Canadian criminal justice system is disproportionately applied. In advancing this argument, the relevant jurisprudence and academic literature will be analyzed according to a methodology inspired by the Critical Legal Studies movement. The issue of exclusion will be examined in its social context, primarily by analyzing the current system of Canadian criminal justice and acknowledging its over-application to the socially disenfranchised. It will be argued that the Supreme Court’s test for exclusion has developed as it has because of the judiciary’s subconscious tendency to interpret unclear constitutional provisions in keeping with the dominant 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 ‘s exclusionary mechanism. This new approach will attempt to situate social context at the forefront of the s. 24(2) decision-making process. It will be argued that the concept of “disrepute” within s. 24(2) must be redefined so that it captures investigatory practices made possible by unjust social, racial and economic divisions that render certain groups powerless, and thus more vulnerable to police surveillance. 11 TABLE OF CONTENTS Abstract ii Table of Contents iii Acknowledgements vi 1. Introduction 1 1.1. Academic justification and methodology 8 1.2. Organization of research and analysis 24 Chapter 2. A History of Canadian Criminal Justice and its Relationship to s. 24(2) 26 2.1. Pinning the tail on a donkey: The purpose of Canada’s criminal justice system 28 2.2. Marxist conceptions of criminal justice 32 2.3. Repressing the repressiveness of Canada’s criminal justice system 35 2.4. Targeting the socially powerless 40 2.5. The nature of Canadian policing 44 2.5.1. “It’s us against them”: The police worldview 45 2.5.2. Policing in the penumbra 48 2.5.3. The police vs. the courts: Implementing “unfavourable” Charter rulings 51 2.5.4. “Testalying”: The practice of police perjury 53 2.5.5. The practice of racial profiling 56 2.5.6. The social realities of policing in Canada 60 2.6. Conclusion to Chapter 2 61 Chapter 3. The Rise of Canada’s Exclusionary Rule 63 3.1. Origins: Exclusion in the U.S. and pre-Charter Canada 63 3.2. Creating s. 24(2): The language of a political compromise 71 3.3. The Supreme Court and Canada’s exclusionary rule 73 3.3.1. The route to the exclusionary remedy 73 3.3.2. Section 24(1): Canada’s “other” exclusionary mechanism 74 3.4. Excluding evidence under s. 24(2) 77 3.4.1. R. v. Therens 78 3.4.2. R. v. Collins 84 3.4.3. R. v. Stiliman 88 3.4.4. The s. 24(2) test after Stillman 94 111 3.5. Conclusion to Chapter3.96 Chapter 4. Judicial Discretion, Adjudicative Subjectivity, and s. 24(2) 98 4.1. Judging the judges: The judicial interpretation of vague constitutional provisions 99 4.1 .1. The Supreme Court on the Supreme Court: An interpretational self-analysis 100 4.1.2. The crime control critique of exclusion under s. 24(2) 103 4.1.3. The liberal/due process critique of Charter interpretation 110 4.2. Theory in action: The Supreme Court, discretionary decision-making, and s. 24(2) 114 4.2.1. A “conservative” court, a “conservative” test 115 4.2.1 .1. The average law-abiding Canadian 116 The average law-abiding Canadian judge 118 4.2.3. Trial fairness and the conscriptive/non-conscriptive distinction 119 4.2.4. The discoverability doctrine 124 4.2.5. Illegally seized corporate documents and s. 24(2) 126 4.3. Reconciling judicial subjectivity, dominant ideologies and the s. 24(2) controversy 129 4.4. Conclusion to Chapter 4 137 Chapter 5. The Consequences of Subjectivity 139 5.1. Rights without remedies 139 5.1.1. Charter violations and monetary damages 141 5.1.2. The lesser alternative remedies approach 142 5.1.3. Non-absolute exclusion and s. 24(2) 145 5.1.4. Individual remedies and s. 24(2) 147 5.1.5. Deterrence, judicial integrity and the exclusion of evidence 149 5.1.6. Exclusion as the only effective remedy 152 5.2. Artificial distinctions and the misuse of s. 24(2) 153 5.3. Failing to guard the guardians 158 5.3.1. The Canadian position on good faith police conduct 159 5.3.2. Legitimate “good faith” or “self-preservation” 174 5.5. Conclusion to Chapter 5 176 Chapter 6. Redefining Disrepute: The Future of s. 24(2) 178 6.1. The fallacy of original intent 180 6.2. Properly situating s. 24(2) within the true rights-limiting mechanisms 186 6.2.1. The “limitations clause” 187 6.2.2. The “notwithstanding clause” 189 iv 6.2.3. Limiting the limitation of rights 190 6.3. Creating an environment amenable to the effective reform of s. 24(2) 191 6.3.1. Changing the philosophy of exclusion 191 6.3.2. Acknowledging the practical impact of the Charter ‘s core legal rights 194 6.3.3. Acknowledging the need for change 198 6.4. The critical reform of s. 24(2) 198 6.4.1. The scope of the core legal rights and s. 24(2) 199 6.4.2. Redefining disrepute in the s. 24(2) context 201 6,4.3. Outlining a new interpretive methodology for s. 24(2) 204 6.4.4. The truly minimal rights violation 209 6.4.5. The immateriality of “good faith” police conduct in the reformed s. 24(2) 211 6.5. The new exclusionary rule in action 213 6.5.1. Orbanski revisited 214 6.5.2. Feeney revisited 218 6.5.3.L.B. revisited 221 6.6. Conclusion to Chapter 6 223 Chapter 7. Conclusion 225 Bibliography v ACKNOWLEDGEMENTS I offer my gratitude to the faculty, staff and my fellow students at the Faculty of Law, UBC. I owe particular thanks to Dr. Janine Benedet, whose questions and criticism made this project more thorough and consistent. I also thank Professor Isabel Grant for her assistance and her helpful suggestions. Particular thanks are owed to my parents, who have offered me endless and unconditional support throughout many years of education and many changes in profession direction. I also thank Régine Lapointe for her encouragement and her enthusiasm throughout the year. vi 1. Introduction It is a summer day in Likely, a small town with approximately 300 residents, located in British Columbia’s bucolic Cariboo region. One of those 300 residents, 85-year old Frank Boyle, lies dead in his home, brutally bludgeoned to death by an intruder.’ He has been struck in the head five successive times with an iron bar.2 Each blow was of sufficient magnitude to cause his death.3 The assault has left Boyle’s blood spattered over much of the interior of his home. Blood drips from the walls, from the furniture. Beer, cigarettes and a small amount of cash are missing from the residence.4 The deceased’s red Datsun pick-up truck is also gone.5 Based on information from several civilian bystanders, the police venture out into the small, now shattered community 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 and deserted.7 A witness informs police that she observed the truck in the ditch at 6:45 am that morning, and that she also saw an individual walking away from the accident scene around the same time. She identifies that person as Michael Feeney.8Another witness provides police with information on how to locate Feeney. That witness rents property to Feeney’s sister and her common law spouse, and he knows that Feeney resides in a trailer located on that property.9The R.C.M.P. attend the rental property and once there, they interview the common law spouse. He informs them that Feeney returned from a night of drinking at 7:00 am that morning, and that he is currently asleep inside his trailer.10 Armed with this information, the police approach the windowless trailer in which Feeney is sleeping, knock on the front door, and verbally identify themselves as police.” They are met with silence. The lead officer draws his gun and enters the residence.’2Once inside, the police proceed toward Feeney’s bed and observe him to be indeed asleep. The lead officer shakes Feeney’s leg to awaken him, and then informs him that he wants 1 R. v. Feeney, [1997] 2 S.C.R. 13 at para. 6, 146 D.L.R. (4th) 609 [Feeney cited to S.C.R.]. 2lbid Ibid. 4lbid. atpara. 11. Ibid. at para. 7. 6 7 9 ‘°Ibid atpara. 8. “Ibid at para. 9. 1 to ask him some questions. Feeney is asked to move into the light.13 When he obliges, the officer notices that his clothes are covered in blood.’4 The hunt has been a short one. Feeney is arrested and informed of his Charter right to contact 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 in nearby Williams Lake, where he makes several unsuccessful attempts to contact his Feeney is interviewed by police, and eventually admits to having attacked Boyle, having taken beer, cigarettes and cash from his home, and having stolen his red Datsun pick-up The police obtain a search warrant for Feeney’s trailer, where the cigarettes and cash from Boyle’s home are later found and seized.’8Feeney is charged with murder in connection with the killing of Frank Boyle.’9 Ten years later, on fall day in Toronto, Ontario, two plainclothes police officers are patrolling a notoriously crime-prone neighbourhood in an unmarked police vehicle.20 As the officers drive past a high school, they notice a young black male, F., leaning against the railing of a path leading toward the school. As the police continue through the area in their car, they notice F glance in the direction of a second black youth, L.B., who is seated on school property and a distance away from F. The two males are separated by a flight of stairs and a fence.2’The officers turn their vehicle around in order to begin surveillance on the two youths. They notice F cast a number of looks in the general direction of L.B., and observe that the two youths appear to be speaking to one another.22 The fact that the two young men are positioned in such a manner produces an “uneasy feeling” in the officers.23 As a result, they decide to speak to the youths in order to determine whether they are engaged in illegal activities. To facilitate this communication, the officers drive their vehicle across several lanes of traffic and park directly in front of F. The police cruiser now rests in the northbound lane, positioned opposite to the natural flow of traffic.24 13 Ibid 14 Ibid 15 Ibid ‘6Ibid atpara. 10. ‘7Ibid atpara. 11. 18 Ibid. 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. 2 The 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 be carrying a black bag in his right hand, rise from his seated position, walk down the flight of stairs and proceed along the sidewalk toward their position.26 There is nothing threatening about the manner in which L.B. performs these actions. He appears calm, dutifully approaching men in plainclothes who claim to be police. Once he has reached their location, one of the officers engages L.B. in casual conversation. The other officer proceeds to speak with F.27 L.B. is questioned about his reasons for being at the school. He informs the first officer that he is a new student there, and that he is not currently in class because he has a free period.28 When the officer asks for L.B.’s name and date of birth, the young man complies.29 Both 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 young men. While doing so, one officer notices that L.B. is no longer carrying the black bag he appeared to have had in his hand while he was seated at the top of the stairs. The officer proceeds to that area, eventually locates the bag and questions the two youths as to whom it belongs. F does not respond and L.B. suggests that it does not belong to him.3’ The officer therefore treats the bag as “abandoned”, opens it and discovers schoolwork bearing L.B.’s name and a loaded .22 caliber handgun.32 Through a series of shouts, the officer verbally alerts his partner about the presence of a gun on the scene. L.B. and F. are arrested at gunpoint.33 L.B. is later charged with possession of a loaded, restricted firearm as well as seven other firearms-related offences.34 These two scenarios are each troubling, but in contrary ways. In the first case, a vulnerable 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 quickly identify 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 a low-income neighbourhood in Toronto. For engaging in the seemingly innocuous act of sitting 25Jbid atpara. 15. 26IbicL atpara. 16. 27.jbjd atpara. 18. 281b1d atpara. 19. at para. 20. 301b1d. atpara.21. 31 Ibid. at paras. 24-25. 321b1d atpara.25. Ibid 34Ibid atpara. 1. 3 down near a high school, the youths are placed under surveillance and are eventually questioned by police. This “selectively proactive”35policing cannot be justified by the fact that it eventually led to the discovery of a loaded, illegal firearm. Although the situations are distinguishable on their facts, they also bear an important similarity. Each case highlights the tension between society’s interest in safeguarding individual due process protections and its interest in facilitating the efficient prosecution of criminal suspects through the promotion of effective investigatory techniques for police. Both scenarios require an assessment of the propriety of police investigatory procedures in light of the due process rights provided to Feeney and L.B. by the Canadian Charter ofRights and Freedoms.36 The difficulty that courts have in making these assessments is effectively illustrated by the eventual outcomes of Feeney and L.B. Michael Feeney was initially tried and convicted of second-degree murder for his role in the killing of Frank Boyle.37 Although his conviction withstood an appeal to the British Columbia Court of Appeal,38 the majority of the Supreme Court of Canada ultimately decided that the police obtained vital pieces of evidence in a manner that violated the accused’s rights under ss. 8 and 10(b), and that admission of that evidence at trial would bring the administration of justice into disrepute.39 The majority therefore set aside Feeney’s conviction, and ordered a new trial.40 At his second trial two years later, Feeney was convicted of second-degree murder, a charge the Crown was able to substantiate without the illegally obtained evidence that had been successfully impugned at the first trial.41 L.B. ‘ s case was resolved in an entirely different manner. At first instance, the trial judge found violations of L.B.’s rights under ss. 9 and 10(b) and excluded the .22 caliber handgun from the proceedings, which resulted in L.B. being acquitted.42However, the Ontario Court of Appeal disagreed with the trial judge’s decision, finding instead that the police did not detain L.B., and that it was therefore not necessary for them to provide the youth with a reasonable opportunity to retain and instruct counsel.43 There were thus no Charter violations, and the trial judge was therefore wrong to exclude any of the evidence secured against L.B. from his criminal trial. u Ibid at paras. 58-59. Despite acknowledging that racial profiling or harassment on the part of police could be relevant to the issue of psychological detention in relation to s. 9, the Ontario Court of Appeal opted to leave this issue unresolved in L.B. as the defence did not raise allegations of improper police conduct. 361 of 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. 41 SeeR. v. Feeney, 2001 BCCA 113, 152 C.C.C. (3d) 390. supra note 20, at para. 1-2. Ibid at para. 72. 4 Despite finding that the police investigation of L.B. had not infringed the Charter, the Court of Appeal further held that even if the officers had violated L.B.’s Charter rights, those violations would not have been of sufficient severity to exclude the evidence under s. 24(2). That decision has 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 conclusion arrived at by the court in L.B., and vice versa. At first glance, it would appear that there is a better argument for admitting the statements, the bloody shirt, the cigarettes and the cash in Feeney than there is for admitting the handgun in L.B. In the former case, the police merely approached and questioned an individual who had been specifically identified as a suspect in a vicious murder. They did so in what appeared to be a relatively innocuous manner, knocking on Feeney’s front door, announcing themselves before entering. In the latter case, the police appear to have approached and questioned an individual based solely on his physical appearance and his geographical location. They appear to have unreasonably taken evasive action, racing an unmarked police across several lanes of traffic to confront a young man who was seated on a bench, not engaged in doing anything in particular. When these outcomes are compared on a basic level, their disparate results appear to be utterly irreconcilable. The disparity of treatment only grows starker with further examination. For instance, the courts found the police action in Feeney to have been malicious in nature, while the police in L.B. were deemed to have acted in good 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 the overarching difficulties that the courts have had — and continue to have — in interpreting the scope of individual rights protections when they come into direct conflict with the criminal justice system’s ability to successfully prosecute criminals. Which aim is to prevail? Should the courts ensure that individual rights are paramount in all borderline cases? Or should they ensure that overly expansive due process protections do not unduly curtail police investigations and the subsequent trial and punishment of criminal offenders? Can due process protections ever be satisfactorily reconciled with effective crime control measures? Questions such as these have persisted for more than 25 years. As Feeney and L.B. demonstrate, the courts have yet to provide any conclusive answers. 5 The judiciary’s various attempts at reconciling these competing values do not represent the only sources from which opinions on the topic are generated. The media and the general public also frequently weigh in on the subject, particularly when individual rights are perceived to be conflicting with society ability to bring criminals to “justice”. Neither the decision in Feeney 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 the Crown’s ability to efficiently punish a murderer.44 The L.B. ruling was impugned — albeit to a lesser extent — for seemingly ignoring a Charter violation simply because of the form of evidence that violation produced.45 As such, these decisions force the public to face hard questions as well. Should they forego their protection from undue interference by the state in order to ensure criminals are not shielded from punishment? Who do they need more protection from, criminals or government agents? When considered together, then, the decisions in Feeney and L.B. serve as a microcosmic example of a much larger issue. Each case forces the courts and the public to confront the inherent conflict between two distinct, but undeniably interrelated concepts. What has become clear is that this conflict has the potential to erode both public and judicial respect for individual rights in Canada. The debate set out in Feeney and L.B. has been at the centre of Canadian criminal law since the Charter was proclaimed into force on April 17, 1982. On that date, the rights and freedoms contained within the document became an integral part of Canada’s supreme law,46 and thus the criminal trial process as well. Since its promulgation, Canada’s entrenched bill of rights has generated an immense body of case law, commentary and criticism that is perhaps most pronounced and most controversial in relation to criminal law and the prosecution process. The commentary and criticism in this regard pertains almost entirely to the core legal rights,47 which represent the heart of the due process protections available in Canada. The Charter now plays a role 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 (4 July 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 wrongful convictions” 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 (6 September 2007) Al; and Tracey Tyler, “Will rights be ignored in gun crimes?” The Toronto Star (7 September 2007) A19, 46 See 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 the Charter. See Daniel C. Santoro, “The Unprincipled Use of Originalism and Section 24(2) of the Charter” (2007) 45 Alta. L. Rev. I at para. 7 [Santoro]. 6 constrain police procedure in the investigation and arrest of criminal suspects. Although the majority of Canadians value these important personal protections, the respect for individual due process rights is significantly complicated — and often radically diminished — when it is applied to people involved in criminal activity. In this context, popular support for the sanctity of individual rights has a tendency to ebb in deference to the criminal justice system’s goal of successflully prosecuting criminals in the name of ensuring community safety. The clash between individual rights protection and the preservation of effective police investigations reaches its climax in s. 24(2) of the Charter.48 This section vests a court with the power to exclude evidence — regardless of its reliability and probative value — from the criminal trial process if the court is satisfied that the admission of that evidence could cause the administration of justice to be brought into disrepute. It is at the point that such a ruling is made that crime control and due process come into direct contact. The acrimonious relationship between these two concepts has ensured that the Charter’s exclusionary mechanism has had a turbulent 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, conflicting jurisprudential developments, media rhetoric or just plain uneasiness as s. 24(2). Since the Charter came into force, our Court has returned on many occasions to the interpretation and application of this provision. It has developed and refmed methods of analysis and application. Despite all these efforts, doubts and misunderstandings remain.49 Although 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 ideas contained 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 core legal rights becomes vulnerable to attack. Virtually everyone agrees that the police should not be permitted to forcibly gain entry into a private home simply because they want to ensure that no criminal activity is taking place in side. However, there is substantially less agreement regarding whether the evidence gathered as a result of such an illegal intrusion should be used against that home’s occupant, especially when that evidence conclusively indicates that he or she is involved in the commission of a criminal offence. Although the rights are acceptable in theory, their practical impact often generates dissent. Frustration mounts when the factually guilty are perceived as being allowed to escape punishment if crucial evidence must be excluded from their trials because the police failed to abide by one of the core legal rights, which by this point in the Charter, 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. 7 process are typically characterized as investigatory niceties established by the Charter to hinder the police and help criminals. As this controversy suggests, the practical impact of the Charter ‘s core legal rights is inextricably linked to judicial interpretation and application of s. 24(2). It is equally as clear that the Supreme Court has thus far been unable to arrive at an interpretation of the section capable of ending the controversy that has surrounded the exclusionary mechanism for the past quarter century. 1.1. Academic justification and methodology As LeBel J.’s remarks suggest, the Supreme Court of Canada’s treatment of s. 24(2) has generated considerable academic commentary and criticism. Most of this criticism — which tends to centre on the Supreme Court’s leading rulings on exclusion — has been decidedly negative, and became even more so in the wake of the Court’s decision in R. v. Stillman.5°However, prior to the Court’s issuance of the first of its landmark pronouncements on the section, the relevant academic writing was essentially limited to introducing the concept of excluding unconstitutionally obtained evidence, providing detailed explanations of each constituent part of s. 24(2), and offering general prognostications as to how the Supreme Court might eventually interpret those parts.5’ Though the volume of this essentially descriptive commentary seems relatively minimal when it is compared to what came later, it has nevertheless had a far-reaching impact on the overall debate, and is often still cited as authoritative on certain points more than two decades after it was first composed.52 After the Supreme Court weighed in on the s. 24(2) debate in the mid-1980s,53the related commentary acquired a deeply prescriptive tone. Once the section had been interpreted by the nation’s highest court, it did not take long for critiques of that interpretation to be launched from a 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.]. 51 See e.g. A.A. McLelIan & B.P. Elman, “The Enforcement of the Canadian Charter of Rights and Freedoms: An Analysis of Section 24” (1983) 24 AIta. L. Rev. 205 [McLellan & Elman]; Dale Gibson, “Enforcement of the Canadian 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-Marie Morissette, “The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms: What to Do and What Not to Do” (1984) 29 McGill L.J. 521 [Morissette]. 52 See 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 Don Stuart, Charter Justice in Canadian Criminal Law, 3d ed. (Scarborough, Ont.: Thomson Canada Limited, 2001) at 454, n. 7 [Stuart, Charter Justice] (relying on “heavily” on McLellan & Elman in setting out the legislative history of s. 24). The Supreme Court did not explicitly rule on s. 24(2) until 1985. Up to that point, the judicial debate concerning the 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. 8 next quarter century, the Supreme Court’s development of Canada’s exclusionary rule was to be subject to frequent academic attacks, many of which are founded on notions of the criminal justice system that adhere closely to the crime control model as set out by Herbert L. Packer.54 According 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 be performed by the criminal process. The failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order and thence to the disappearance of an important condition of human freedom. If the laws go unenforced, which is to say, if it is perceived that there is a high percentage of failure to apprehend and convict in the criminal process, a general disregard for legal controls tends to develop. The law-abiding citizen then becomes the victim of all sorts of unjustifiable invasions of his interests. His security of person and property is sharply diminished and, therefore, so is his liberty to function as a member of society. In order to ensure that the laws are enforced to the maximum extent possible, the crime control model focuses heavily on increasing the system’s ability to efficiently determine guilt and apply punishment.56For the purposes of this thesis, s. 24(2) scholarship that bears the hallmarks of the crime control model will be described as crime control or conservative critiques of the Supreme Court of Canada jurisprudence pertaining to exclusion. The word “conservative” is used in this context not in its traditional political sense, but rather to denote a body of thought that exhibits a general resistance to change or innovation, particularly with regard to those alterations that would affect existing social structures and dynamics. Despite their prevalence, the conservative/crime control commentaries by no means enjoy 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 extensively criticized the Supreme Court’s handling of the Charter’s exclusionary mechanism. These accounts 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 is publicly heard by an impartial tribunal and is evaluated only after the accused has had a full opportunity to discredit the case against him.”57 As a result of this concern, the due process model 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 criminal process must ... be subjected to controls and safeguards that prevent it from operating with Herbert 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. 9 maximal 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 the Due Process Model would accept with considerable equanimity a substantial diminution in the efficiency with which the criminal process operates in the interest of preventing official oppression of the individual.58 When 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 the issue of exclusion. The term “liberal” is not intended to refer to any particular form of political policy, but rather as more of a counterpoint to the conservative approaches that register a clear resistance to systemic change. While the more liberal approaches to exclusion do not explicitly advocate for any major changes to the social order, they do recognize the power imbalances that exist between the individual and the state, and that these imbalances are more extreme with regard to marginalized social groups. They are thus more open to jurisprudential shifts that may effect 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 are those who posit that the Supreme Court has interpreted s. 24(2) in a manner that unjustifiably results in the over-exclusion of tangible evidence of guilt.59 Second, there are those who view the Court’s s. 24(2) case law as improperly limiting the range of rights violations to which exclusion will apply.6°Far fewer in number are the articles that fall outside these groups, such as those that 58Ibid 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 of Canada and Section 24(2)” (2004) 29 Queen’s L.J. 823 [Fraser & Addison]; David M. Paciocco, “The Judicial Repeal 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 under Section 24(2)” (1997) 2 Can. Crim. L.R. 163 [Paciocco, “Disproportion”]; David M. Paciocco, Getting Away With Murder: 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) of the 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 Approach to Section 24, Part II— Section 24(2) in Crisis” (2000) 44 Crim. L.Q. 34 [Pottow]. 60 See 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 the Charter” (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 Are We Now?” (1988) 67 C.R. (3d) 288 at 292 [Delisle, “Exclusion”]; Bruce B. Elman, “Collins v. The Queen: Further Jurisprudence on Section 24(2) of the Charter” (1987) 25 Alta L. Rev. 477 [Elman]; Grace Hession, “Is ‘Real Evidence’ Still a Factor in the Assessment of Trial Fairness under Section 24(2)?” (1999) 41 Crim L.Q. 93; Richard Mahoney, “Problems with the Current Approach to s. 24(2) of the Charter: An Inevitable Discovery” (1999) 42 Crim. L.Q. 443 [Mahoney]; Don Stuart, “Burlingham and Silveira: New Charter Standards to Control Police Manipulation and Exclusion of Evidence” (1995), 38 C.R. (4th) 386 [Stuart, “Police Manipulation”]; Don Stuart, 10 either tentatively support the current s. 24(2) jurisprudence, or at least attempt to defend it from continued attack.6’ An even more limited number of commentators somewhat straddle both primary 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 of Charter rights on the other.62 When considered as a whole, the body of legal writing devoted to the rigorous analysis of s. 24(2) is an undeniably large. This scholarship has been highly influential in the evolution of Canada’s exclusionary mechanism. Indeed, early academic contributions as to how the section ought to be interpreted played a direct role in the Supreme Court’s majority decision in Collins.63 Similarly, critiques of the Court’s subsequent s. 24(2) jurisprudence greatly influenced landmark decisions such as R. v. Burlingham,64and Stillman.65 The relevant academic contributions have thus served as valuable resources that have been relied upon by the Court when it has attempted to clarif’ and strengthen its approach to the exclusion of unconstitutionally obtained evidence. The various commentaries have also successfully highlighted several internal inconsistencies in some of the more influential s. 24(2) decisions, and they have carefully documented and analyzed the numerous developments that have occurred in the Supreme Court’s interpretation and application of the section.66 These historical facts are testaments to the indispensable role that the existing s. 24(2) scholarship has played in the Court’s development of the Charter’s exclusionary 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 general categories of s. 24(2) scholarship suggest, the overall body of work is characterized by a seemingly 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. 61 See 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. 62 See e.g. Adam Parachin, “Compromising on the Compromise: The Supreme Court and Section 24(2) of the Charter” (2000) 10 Windsor Rev. Legal Soc. Issues 7 [Parachin]. 63 See 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). 65 See 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 note 59). 66 See e.g. Mahoney, supra note 60; Stuart, “Eight”, supra note 60; and Brewer, supra note 59. 11 methodological approach taken to the study of s. 24(2) thus far does not exhibit a noticeable degree 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 contradictions in the doctrine and have argued that exclusion should be less or more frequent on the basis of general preferences for truth seeking or rights protection in the criminal justice process. They have also canvassed the various rationales for exclusion and pointed out aspects of the Court’s jurisprudence that are consistent or inconsistent with those rationales. But few have attempted to prescribe an exclusionary regime that is tied to and justified by a single, coherent exclusionary theory.67 Indeed, the majority of the scholarship devoted to s. 24(2) has been limited by a focus on parsing the details of the Supreme Court’s multitudinous rulings on the subject, ascertaining and impugning the various flaws and contradictions in that jurisprudence, and then advocating for a narrowing or broadening of the exclusionary ambit, depending upon whether the author subscribes 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 ‘s exclusionary mechanism from a more theoretical standpoint. But they do so on a relatively narrow plain. The theoretical bases employed to analyze the subject are essentially limited to three oft-cited rationales for the exclusion of unconstitutionally obtained evidence that is otherwise 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 another of these rationales is selected, while the others are refuted, usually through appeal to the supposed intentions underlying the language of s. 24(2), by reference to the admittedly limited empirical studies undertaken on the effects of excluding evidence for constitutional violations, or through some combination of both methods. There is inevitably one rationale left standing, and it is first used to refute the current exclusionary rule jurisprudence, and to then chart a new path for the interpretation and application of s. 24(2), one that is more logically and practically appealing to the author by whom it is advanced. If adopted by the Court, the suggested route of reform is then promised to more appropriately respect the spirit and intent of the section, and to be more logically defensible against critical attack. Despite earnest efforts at moving the s. 24(2) scholarship from the criticism of various aspects of the undeniably complex Supreme Court jurisprudence and on to suggestions for wholesale reform, these more theoretical approaches remain somewhat limited by their adherence to the dominant discursive ideology. More specifically, mainstream s. 24(2) thought 67 Penney, “Deterrance”, supra note 59, at 108. 68 Paciocco, “Judicial Repeal”, supra note 59, at 330-333. 12 appears to suggest that the “right” answer to the dilemma of exclusion can be found by engaging in a limited analysis, focusing primarily on the text of the Charter. Robert Unger has argued that this “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 justification that contrasts with open-ended disputes about the basic terms of social life, disputes that people call ideological, philosophical or visionary. Such conflicts fall far short of the closely guarded canon of inference and argument that the formalist claims for legal analysis. This formalism holds impersonal purposes, policies, and principles to be indispensable components of legal reasoning.69 By this definition, all forms of s. 24(2) scholarship — the theory-based assessments included — are to a degree constrained by formalism. They employ a narrow, purportedly value-neutral range of theories 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 the judicial decision-making processes that produce each individual ruling. Further, they judge the Supreme Court’s mediation of the conflict between the protection of individual rights and the maintenance of effective crime control mechanisms without also judging the socio-legal environment in which that conflict exists. As a result, the exclusion of evidence under s. 24(2) is commonly analyzed in the absence of its social and adjudicative contexts, as though it exists within a textbook, utopian version of criminal justice. This limited scope helps to explain why commentators with purportedly disparate philosophical outlooks consistently reach similar conclusions in their analysis of s. 24(2). The academic condemnation of the Supreme Court of Canada’s leading rulings on exclusion is near universal. Although the reasoning process employed in crime control and due process critiques often differs, they navigate essentially the same path through the relevant jurisprudence, and then either impugn the Court’s creation of an anti-inclusionary rule for some forms of evidence, or its creation of an anti-exclusionary rule for other forms of evidence. Such criticisms implicitly suggest that the context in which these decisions are rendered is fundamentally acceptable, and that 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 viewed as essentially agreeing with one another regarding the fundamental issues at play in the process of exclusion. This phenomenon is certainly not unique to the legal thought related to s. 24(2). As Alan Hutchinson has observed: 69 Roberto 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 is commonplace and seems to represent its natural condition. Vast intellectual energies are spent in hair-splitting exercises, and minor disagreements are allowed (or encouraged) to mushroom into full-blown intellectual wars. But the divergence of opinion is more apparent than real. Behind the theoretical clamor and personal antagonism is a not-so-surprising homogeneity of philosophical interest and political affiliation. ‘° The s. 24(2) scholarship, then, favours recommendations for the making of minor changes to the case law, or the reversal of particularly “unfavorable” decisions rather than calling for a radical overhaul of the interpretive approach to the section. As Hutchinson further argues, this result is to be expected when it is acknowledged that at the root of all mainstream legal debates, “[tjhere exists a tacitly shared agenda of issues to be confronted, and their attempted resolution proceeds on the basis of joint assumptions about the availability and acceptability of certain methods or answers.”71 None 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 has significantly impacted the development of Canada’s exclusionary rule. What is missing from this scholarship, however, is a critical analysis of the societal superstructures into which the Charter and 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 necessarily devolve into nothing more than idle repetition of what has come before. Worse still, by ignoring the social context in which s. 24(2) operates, the related scholarship could begin to obscure the social elements of the judicial decision-making process that has driven the development of the section 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 the maintenance 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 to make it perfect.”72 One reason the s. 24(2) commentary has advocated only minor, legalistic changes, is because it has largely employed what Kennedy refers to as “the natural law approach” to legal analysis. 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”]. 71 Ibid 72 Duncan Kennedy, “The Structure of Blackstone’s Commentaries” (1979) 28 Buff L. Rev. 205 at 212 [Kennedy, “Blackstone”]. 14 incorrectness, and proposing and defending different results when the conclusions that were actually reached by the courts are deemed rationally unacceptable.73What this process generally neglects to do, however, is to look beyond the limits of the case law when engaged in the process of 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, for instance by reference to the prevailing social conditions in which those rulings are made, and how those conditions influence the process of judging that is taking place. As a result, the fact that police investigations are disproportionately directed at racially and economically marginalized 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 of exclusion. 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 than others. This in turn means that they will be investigated more often, that the police will more frequently detect their crimes, and that their Charter rights will be violated with greater regularity in the course of the ensuing investigations. If the police routinely stop and search individuals living in one neighborhood more often than those who live elsewhere, more of the former group’s crime will be detected than the latter’s. Likewise, if police disproportionately investigate racial and ethnic minorities, more of the offences committed by those groups will be uncovered. Increased investigations and arrests will also inevitably lead to increased Charter violations, and therefore more instances on which incriminating evidence is obtained in an unconstitutional mariner. These realities mean that s. 24(2) is triggered on a more frequent basis insofar 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-policed groups 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 focuses on searching for tangible evidence of guilt, which makes the successful charging and prosecution of these crimes easier than it is for lower visibility offences such as sexual assault and domestic violence, which depend primarily upon the investigator’s ability to secure the cooperation of witnesses. Thus, police surveillance is routinely centred on the poor and the racially marginalized, and most often detects the highly visible and easily investigable crimes committed by these individuals. This means that most Charter violations occur in this context, and that as Ibid. at 219. 15 such, s. 24(2) is disproportionately applicable to these individuals and to the admission of tangible evidence of guilt. It is therefore necessary for the current interpretation and application of s. 24(2) to be analyzed with these circumstances firmly in mind. If s. 24(2) cannot give effect to the core legal rights in the context in which it most often operates, those rights unavoidably lose a large portion of their practical impact, reducing both their functionality and their overall meaning. However, notions of disproportionality have been largely absent from the critiques of Canada’s exclusionary rule because incorporating such notions would require rethinking not only s. 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 loyalty oaths have always been a condition of admission to the inner circles of legality.”74 In order to assess the Supreme Court’s current s. 24(2) jurisprudence in a manner that differs from the existing work, it is necessary to take a more holistically critical approach. This analysis draws from approaches inspired by the Critical Legal Studies movement (CLS). Hutchinson — a noted CLS scholar — describes the movement as “[tihe most sustained and serious attempt to date by leftist lawyers to expose the political dimensions of the adjudicative and legal process.”75 The principle idea driving CLS is its acknowledgment of law’s tendency to legitimize otherwise illegitimate means of social organization. Rather than approaching legal issues in a manner that serves to reinforce law’s legitimizing effects, CLS scholars seek to directly confront the illegitimacy of the very institutions that mainstream legal thought strives to maintain. As Hutchinson suggests, CLS proponents view “[t]he Rule of Law [asi a mask that lends to existing social structures the appearance of legitimacy and inevitability; it transforms the contingency of social history into a fixed set of structural arrangements and ideological commitments.”76To this end, CLS seeks to demonstrate “[t]hat the status quo and its intellectual footings, far from being built on the hard rock of historical necessity, are actually sited on the shifting sands of social contingency . . . ‘7 This form critical analysis is particularly relevant to the discussion of s. 24(2) as it requires more than the mere examination of particular Supreme Court rulings. It demands a confrontation with the motives that underlie those rulings — be they conscious or subconscious. It requires that the assessment of those rulings take place in their proper social-structural setting, rather than in an artificial, contextless vacuum. 74Ibid. at 218. Hutchinson, “Introduction”, supra note 70, at 2. 761b1d at3. 77micz 16 Although CLS was originally conceived as a radical counterpoint to mainstream legal scholarship and judicial reasoning produced in the United States, its role in expanding the interpretative and directional scope of legal thought need not be limited solely to American sources. As Hutchinson explains, CLS’s “[p]olitical and legal project is firmly anchored in concrete American conditions. Its very shape and life history, short as it is, can be fully comprehended only in terms of the history and practice of the American legal, academic, and political establishments.”78 However, CLS is clearly applicable to the Canadian legal establishment as well. Indeed, many of the characteristics of the American regime on which CLS is based are arguably present to a significant extent in Canada. According to Hutchinson, CLS is conceptually linked to the United States because of that country’ s: [flack of any established or sizeable left tradition in popular politics; the isolation and victimization of left intellectuals in the universities; the male monopoly on legal and political power; the legacy of institutional racism; the thoroughly professional orientation of legal education; the neo-formalists’ domestication of realism’s radical message; and the centrality of the Supreme Court in the American constitutional scheme and national psyche.79 Hutchinson himself linked the CLS movement directly to the “Anglo-Canadian” experience,80 and would in later years embark on critical analysis of the effects that formalist liberalism and the 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 advance general theories of Charter adjudication, only a limited number of Canadian commentators have explicitly considered whether the CLS critique is directly applicable to the core legal rights. In one such instance, James Stribopoulos commented on the doctrine’s application to the arrest process in Canada, ultimately rejecting it as being based on a “faulty foundation.”82 In this regard, Stribopoulos notes that: [fit proceeds from the assumption that absent the Charter and the judicial law-making that it ushered in, problems relating to police accountability would have found their solutions through the democratic process. What this thesis ignores, to its peril, is that long before the Charter Canada had a mature democracy. Nevertheless, despite the fact that numerous government-sponsored commissions and inquiries had found serious wrongdoing on the part of various Canadian police forces, the democratic process alone had not yet yielded meaningful reforms.83 78IbicL at6. ibid. 80IbicL at 10, n. 8. 81 See Allan C. Hutchinson, Waitingfor Coraf A Critique ofLaw and Rights (Toronto: University of Toronto Press, 1995) [Hutchinson, Coraf]. 82 Stribopoulos, A Theory of the Supreme Court ofCanada, Police Powers, and the Canadian Charter of Rights and Freedoms (J.S.D. Thesis, Columbia University School of Law, 2007) at 8 [Stribopoulos, Theory]. 83 Ibid. 17 Stribopoulos 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, thereby instigating an otherwise uninterested political branch to initiate a legislative reform of the arrest process.84 As a result, he concludes that “[ajithough the CLS thesis does a very good job of pointing out the limitations of our judicial process, it fails to acknowledge those limitations that are also somewhat inherent in our political process.”85 Stated simply, Stribopoulos’ argument is that without the Charter, the frailties of Canada’s arrest process would never have fully come to light and that, as such, the Charter itself cannot 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 practical effectiveness of the core legal rights that have been interpreted and applied by the Supreme Court. While it is undeniable that the Court has developed enhanced due process protections during the Charter era, and that these enhancements could not have occurred in absence of the document’s proclamation, it is much less clear whether these protections serve as anything more than the means through which illegitimate arrest procedures are satisfactorily legitimized. It is not enough to posit that the Charter has brought changes to the criminal justice process. What must be determined is whether these changes are superficial or significant. Without an effective remedial mechanism, the Court’s development of due process protections can have largely no effect on the nature of police misconduct. If admission is the result regardless of whether or not the police transgress due process rules, the Charter ‘s oversight of the arrest process simply maintains the perception that Canada’s supreme law regulates that process, and therefore makes it legitimate. Rather than assuming that the Charter ‘s impact is significant and progressive, CLS requires 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 is not monolithic. To the contrary, CLS critiques exist in a wide variety of forms and are leveled from a number of distinct critical perspectives. Nevertheless, they share a fundamental commonality of approach, which can be accurately divided into two related methodological categories: (i) the internal operation of CLS; and (ii) the external operation of CLS.86 In discussing the core elements of the internal approach, Hutchinson explains that it: 84IbicL at 8-9. 85Ibid. at 10. 86 Hutchinson, “Introduction”, supra note 70, at 3-4. 18 [t]akes seriously conventional writing, both scholarly and judicial. CLS engages jurists and judges on their own turf and shows how they fail to live up to their vaunted standards of rationality and coherence: they cannot withstand the debilitating force of their own critical apparatus. The main target of CLS has been the crucial distinction between law and politics or, to be more precise, the alleged contrast between the open ideological nature of political debate and the bounded objectivity of legal reasoning. CLS rejects this axiomatic premise of traditional lawyering.87 The internal operation, then, is intended to reveal “[t]he established and irrepressible presence of incoherence and contradiction [which] delegitimates and demystifies the authority of law in constructing and maintaining social reality.”88 This approach is distinguished from CLS’s external operation, which is devoted to the discrediting and dismantling of “[t]he whole tradition of rationalist epistemology As Hutchinson succinctly observes, the external operation of CLS “[d]oes not simply contest the practical policies yielded by traditional legal theorizing; it rejects the very basis of contemporary legal theorizing.”90 The implications of the external operation of CLS are undeniably radical. Rather than striving for the direct confrontational engagement of dominant legal theory on specific fronts, proponents of this view aim toward the complete dismantling and reconfiguration of legal thought and in turn, the state and all current systems of social interaction. Roberto Unger’s analysis falls into this category, advancing as it does the reorganization of government, the economy, and the overarching system of rights.91 In order to accomplish these aims, Unger calls for a form of “political and cultural revolution” that involves remaking “[a]ll direct personal connections — such as those between superiors and subordinates or men and women — by emancipating 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 overall reinvention of the democratic notion.93 At its core, the new conception democracy involves radically reorienting the concept so that it is principally concerned with establishing “[a] social order 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.”94 Although the critical study of the Charter, individual rights, and Canadian criminal justice is certainly amenable to analysis using the more radical external operation of CLS, the 87Ibid. at4. 88Ibid. at5. 89Jbjd 90m’d 91 Unger, CLS, supra note 69, at 25. 92Jbid at 26. 93IbicL at 28. 94IbicL at 30. 19 movement’s internal operation is more directly applicable to the Supreme Court’s development of the s. 24(2) jurisprudence. In fact, the internal operation of CLS appears to be the most optimal 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 decisions that 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 screen to obscure its indeterminacy and the inescapable element of judicial choice.”95 Once this is acknowledged, it is misleading to analyze the judicial development of Canada’s exclusionary rule by dissecting the process through which such judicial development occurs. As Hutchinson has argued, CLS takes the position that “[t]here exists doctrinal indeterminacy with an ideological slant. The judicial emperor, clothed and coifed in appropriately legitimate and voguish garb by the scholarly rag trade, chooses and acts to protect and preserve the propertied interest of vested white and male power.”96 The necessary confrontation with the Canadian judiciary’s ideological slant, as well as the acknowledgement of the contingent historical structures encouraging this collective mentality, are elements that mainstream legal thought pertaining 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 to the section unaddressed does not render those issues moot. They continue to exist, and they continue to affect the practical context in which Canada’s exclusionary mechanism operates, and thus 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 Supreme Court of Canada’s development of the Charter’s exclusionary rule by taking into account the fundamental 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 constitutional interpretation. To this end, it will first be argued that Canada’s criminal justice system was originally structured as a means of social control whereby the economically and racially disadvantaged segments of society were subjected to disproportionate police attention in an effort to maintain existing social and economic power arrangements. It will also be contended that the system has not progressed much beyond these origins, and that it instead continues to maintain the societal status quo. 95IbicL at4. 961b1d 20 Second, this thesis will assert that the composition of the Canadian judiciary renders it susceptible to arguments that favour the interests of dominant social groups. As the judiciary is overwhelmingly selected from society’s dominant social classes, judges tend to identify with the collective ideals and goals of these groups. This in turn means that when the judiciary is inevitably called upon to employ its subjective beliefs in the interpretation of unclear constitutional provisions, the resulting jurisprudence is both consciously and subconsciously informed by the ideals and goals of the most powerful segments of society. As the administration of criminal justice is typically directed toward the socially marginalized, the ideals of the powerful routinely conflict with the ideals of the powerless. It will be argued that the judicial subjectivity pervading the current process of Charter interpretation has led to the development of a s. 24(2) jurisprudence that serves to limit the overall practical impact of the Charter ‘s core legal rights. This situation undeniably has a disproportionately negative impact on the marginalized 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 manner requires 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 males who appeared to being doing nothing more than sitting near a high school in a lower income neighbourhood 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 ultimately led to the discovery of a firearm. Instead, the CLS critique mandates that an account be taken of all those instances in which searches of visible minorities are conducted under similar pretenses but do not produce tangible evidence of criminal wrongdoing. Under the critical assessment, the reality of such occurrences cannot be ignored. Similarly, applying the critical approach to Feeney would shift the focus away from the crime allegedly committed by the accused and onto the investigatory conduct of the police. If the reformed approach is used, the fact that the officers honestly and reasonably believed that they were investigating the correct person would not diminish the fact that they acted with little regard for his Charter rights, or for the procedures put in place to ensure the propriety of police investigations. Moreover, the new test would not overly emphasize those aspects of a rights violation — such as the fact that it involved an illegal search of a private home — that tend to favour the interests of society’s dominant groups. In this way, the CLS approach to s. 24(2) ensures that the social realities of policing are not ignored when investigatory misconduct is formally litigated. To the contrary, when the critical approach is 21 employed in the context of exclusion, these social realities necessarily play a central role in the eventual outcome of every case. Because the analytical focus of this thesis will be broadened to include an assessment of the social structures relevant to the exclusionary mechanism, no attempt will be made to take account of every s. 24(2) ruling that has been formally issued to date. Indeed, even with a narrower focus, such an endeavor would be far beyond the scope of this project.97 Instead, the case-based analysis will be limited to a critique of each of the three leading Supreme Court of Canada rulings on the exclusion of evidence obtained contrary to the Charter. Several additional noteworthy Supreme Court decisions related to s. 24(2) and the Therens/Collins/Stiliman regime will also be addressed, as will several decisions from various provincial courts of appeal that are particularly representative of recent trends in the related jurisprudence. Although limited in scope, this case analysis will provide a sufficient basis for the ensuing critical analysis of the Supreme Court’s decision-making process in the s. 24(2) context. The exclusionary regime created by Therens/Collins/Stiliman will then be critically examined in an effort to shift the debate away from its current focus on whether the rule results in either the over exclusion or under exclusion of unconstitutionally obtained evidence. This focus unduly limits the range of options for reform. As Hutchinson has argued, “[tihe discursive categories of the law are neither determinative nor dispositive. Although they do not sanction and 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 real social change In an effort to remedy this situation in the s. 24(2) context, the Supreme Court’s leading s. 24(2) jurisprudence will be assessed by reference to the repressive features of the 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 the methodology used by judges when they must interpret unclear constitutional provisions. It will be argued that as judges continue to be selected from society’s privileged groups, and that they The 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. The subsequent judicial treatment of these three rulings is vast. As of the date of writing, the decision in Therens has been 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 mentioned 1981 times. Additionally, Stillman has been followed 279 times, questioned once, distinguished 22 times, explained 99 times, and mentioned on 1099 occasions. Even allowing for the inevitable overlap between the judicial treatments of these three cases, it would be all but impossible to take account of all — or even most — of the relevant decisions. 98 Allan C. Hutchinson, Dwelling on the Threshold: Critical Essays on Modern Legal Thought (Toronto: The Carswell Company Limited, 1988) at 21 [Hutchinson, Dwelling]. 22 tend to render decisions in keeping with the ideals and values commonly exhibited by members of those groups. As a result, unclear provisions are often interpreted in a manner that ensures either only small-scale changes are permitted, or that the status quo is maintained altogether. In an attempt to confront this issue, problems that flow from this form of judicial analysis will also be documented. These examinations will provide a broad based foundation on which the propriety of the Therens/Collins/Stiliman regime can be accurately assessed. Rather than being limited to judging whether or not the relevant jurisprudence is internally consistent, this thesis will draw conclusions based on additional analysis of the social superstructures that necessarily play a role in the interpretation and application of s. 24(2). This will demonstrate that the current interpretation of s. 24(2) has transformed the Charter ‘s exclusionary rule into a rights limiting mechanism, one that threatens to render the core legal rights substantially less effective in their principal practical application. By reducing the practical effectiveness of the constitutionalized due process protections, the current s. 24(2) simultaneously allows the core legal rights to legitimize the negative features of the criminal justice system — namely its over-application to the socially 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 is needed. In order for that reform to be effective, the current approach must be changed so that it adequately responds to the social realities within which s. 24(2) operates. I argue that this reform ought 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 obvious Charter violations are deemed capable of necessitating exclusion, the Supreme Court must expand the notion of disrepute so that it captures police investigatory practices that arise as a result 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 least considerably less — police interference must be recognized in the interpretation of the exclusionary rule. Briefly stated, s. 24(2) cannot be structured so that only responds to the type of rights violations that occur only rarely. Rather, all police investigatory practices that disproportionately victimize the disenfranchised members of society must be acknowledged as bringing the administration of justice into disrepute. The conclusion to this thesis considers how such a model might work, and applies it to some existing cases that have generated controversy over whether illegally obtained evidence ought to have been admitted or excluded. 23 1.2. Organization of research and analysis The ultimate purpose of this thesis is to set out a prescriptive framework for a reform of the judicial 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 — analyses of the context in which s. 24(2) exists, and of the various elements that come together to inform its interpretation and application. To this end, Chapter 1 will engage in a predominantly descriptive analysis of the criminal justice context into which the Charter ‘s core legal rights and s. 24(2) were inserted. It will also examine current policing practices in Canada by exploring the topic from a sociological point of view. Chapter 2 will then examine the history and development of the exclusion of evidence in Canada. It will briefly discuss the pre-Charter approach to illegally 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 rulings pertaining to s. 24(2), beginning with the Therens decision from 1985, and ending with the Stiliman ruling delivered in 1997. Chapter 3 will address several theories of how the adjudicative process unfolds in the constitutional context, specifically focusing on those theories that attempt to explain how Canadian courts have interpreted the vague provisions of the Charter. These theories will be applied to the Supreme Court’s leading s. 24(2) rulings in an attempt to determine the nature of the Court’s approach to the development of Canada’s exclusionary rule. This will demonstrate that the current s. 24(2) jurisprudence is influenced by restrictive notions of the extent to which the core legal rights are properly extended to individuals involved in crime. Chapter 4 will identify the major problems inherent in this approach, and the repercussions that flow from those problems. In particular, the fact that the current case law tends to leave the core legal rights of those individuals who are targeted by police for increased investigations and arrests without effective remedies will be examined, as will the current jurisprudence’s susceptibility to misuse in times of moral panic. Moreover, the fact that the current exclusionary rule allows police to continue to use unconstitutional investigatory practices without fear of practical repercussions will also be examined. Using the foregoing analysis as a foundation, Chapter 5 will attempt to articulate a new approach to the interpretation and application of s. 24(2). This reformed exclusionary methodology will argue for situating social context at the forefront of the s. 24(2) decision making process, primarily to account for the practical role played by the core legal rights in the current criminal prosecution process. In setting the stage for a reform of the Charter’s 24 exclusionary rule, the “original intentions” approach to constitutional interpretation will be refuted for the purposes of s. 24(2). Moreover, the exclusionary remedy’s proper place amongst constitutional provisions such as ss. 1 and 33 will be established. The chapter will conclude by setting out a framework for the progressive reinterpretation of s. 24(2). That framework will then be applied to the fact scenarios from several controversial Supreme Court of Canada decisions regarding s. 24(2) — including both Feeney and L.B. — in an attempt to demonstrate how the new approach might apply in practice. 25 Chapter 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 prompted Charter 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 to effective 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 a broadly applicable enforcement section.101 Through the operation of this relatively unique tool,’°2 rights violations perpetrated during the investigation and arrest process could be remedied through recourse to an expansive set of constitutionally mandated remedies, including the potential exclusion of illegally obtained evidence. The Charter was thus hailed as the key to the alteration of certain repressive elements of the criminal investigation, arrest and prosecution processes that had endured in Canada since before confederation. However, explanations of the nature of those repressive elements did not figure prominently in the publicity leading up to April 17, 1982. Although support for the Charter was high, it was often based on imprecise polling questions designed to elicit the responses they eventually received.’03 Canadians were clearly aware that the Charter would provide them with enhanced protections; exactly what they needed protection from was far less clear. More than a quarter of a century has now passed since the Charter ‘s inception. The remedies available in s. 24 — amongst which the exclusion of unconstitutionally obtained evidence has emerged as the most significant — have since become controversial among members of 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 changes constitute anything more than procedural alterations that serve to mainly to legitimize the legal status 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 perception that existing social structures developed as a matter of historical necessity rather than because See Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Thompson Educational Publishing, Inc., 1994) at 179 [Mandel, Legalization] (the rights were not “new” in the true sense of the word, with most provisions deriving their origins from the Magna Carta (1215) or the common law). 100 See 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]. 101 See Charter, supra note 36, s. 24. 102 The Bills of Rights of most commonwealth countries do not contain explicit remedial clauses. See e.g. The Constitution 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. 103 See Mandel, Legalization, supra note 99, at 27. 26 those in positions of power made specific choices to serve their interest. As Allan Hutchinson has argued: [m]ore than most languages, law has managed to suppress the contingent character of social history. By institutionalizing an entrenched set of social values, legal discourse has succeeded, at least partially, to contain the dynamism of history-making and, in the process, has persuaded people of the “naturalness” and “necessity” of current social arrangements. However, while the intellectual categories and rhetorical tropes of legal discourse do provide a superficially coherent image of the world, it is so fragile and shallow that it can offer no real repose.104 In keeping with this observation, the study of s. 24(2) must begin by examining the socio-legal context into which the Charter ‘s exclusionary mechanism — and the core legal rights to which it relates — was inserted. Rather than assuming the pre-Charter criminal justice system was nearly perfect, requiring only the official addition of constitutionalized procedural protections to achieve total refinement, it is necessary to analyze the history and nature of that system in order to 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 by arguing 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 social structure, which is replete with economic, racial and regional inequalities. The criminal justice system, like many other social institutions, is designed to provide a degree of societal order that would be impossible to achieve in its absence. More specifically, society requires a set of rules that is at least theoretically applicable in a global sense if it is to continue functioning in a consistent manner. Some form of enforcement mechanism designed to ensure at least a minimal degree of compliance must in turn back these rules. Such a system of rules and enforcement mechanisms necessarily takes on a substantial measure of rigidity, as overly fluid rules are incapable of establishing the necessary social consistency. This creates significant issues as the social 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, it likewise functions to maintain existing social inequalities. In this criminal justice context, the Charter ‘s core legal rights are vulnerable to interpretations that would reduce their practical effectiveness, rendering them mere means of legitimization rather than true mechanisms through which individual rights are protected. In substantiating this argument, several notable historical criticisms of criminal justice will be examined, with particular emphasis placed on the theories of legal scholars writing in the 104 Hutchinson, Dwelling, supra note 98, at 21. 27 Marxist tradition. These critiques will then be linked to the Canadian context through an examination of the historical origins of Canada’s criminal justice system. This examination will itself be based on an analysis of the criminal law that existed in the United Kingdom during the 17th and 18th centuries, which was characterized by a system originally structured to most efficiently maintain the societal status quo. It was this system that was ultimately received in Canada 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 more effectively assess and criticize the current functioning of the Canadian criminal justice system in general, and Canadian policing in particular. Policing is of direct relevance to s. 24(2) as the actions taken by individual officers while engaged in the process of securing evidence of criminal wrongdoing directly cause violations of the core legal rights, thereby triggering the operation of s. 24(2). It is therefore necessary to examine how officers approach the task of policing, and how their approach affects individuals living in Canadian society. This will demonstrate that certain social groups are over-policed in some ways while under-policed in others. 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 “ends justify the means” style of law enforcement. This in turn leads to institutional resistance toward Charter 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 based on one that was originally designed to maintain the social and legal status quo, which were at the time characterized by a radically unequal distribution of wealth and social power. The current Canadian criminal justice system has remained true to its roots in that it continues to have a decidedly unequal impact upon economically and racially marginalized Canadians. This situation is directly relevant to s. 24(2) as it means that certain type of individuals in certain types of circumstances will be disproportionately subjected to police investigations, an in turn, disproportionately exposed to violations of their core legal rights. These social realities must be taken into account when assessing the Supreme Court of Canada’s treatment of s. 24(2), and also when 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 system Criminal justice in Canada is an undoubtedly complex phenomenon. The public, however, tends to push these complexities to the periphery by assuming that the criminal justice system’s purpose is to provide them with protection from crime and to punish criminal offenders. David 28 Paciocco, a noted proponent of crime control in the s. 24(2) context, notes that “[w]e claim that ours 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 the sentences we impose As the tone of Paciocco’s comment indicates, the system has largely failed to live up to this promise. Indeed, a brief examination of the relevant statistics indicates that the system neither functions to reduce the overall amount of crime in society, nor to punish criminal as severely as possible. In the 2006/2007 statistical period, adult criminal courts in Canada processed 372,084 cases involving 1,079,062 charges, numbers that were virtually identical to those recorded during the previous statistical year.’°6 Canadian youth courts processed an additional 56,463 cases involving 179,873 charges in 2006/2007, reflecting no noticeable change from the preceding data collection period.’07 Although the national crime rate has decreased by approximately 30% since reaching its all-time apex in 1991, the rate is still nearly three times higher than it was in 1962.108 Furthermore, there is substantial disagreement regarding whether or not the ebbs and flows in the overall detected crime rate can be conclusively linked to the effectiveness of various criminal justice policies, or even whether the crime rate is itself truly reflective of actual levels of criminal activity 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 did so 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 satisfactorily preventing crime. This is not to say that the criminal justice system has no deterrent value whatsoever. 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 it undoubtedly 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 system 105 Paciocco, Murder, supra note 59, at 22. 106 See Juristat: Canadian Centre for Justice Statistics, Adult Criminal Court Statistics, 2006/2007, vol. 28, no. 5, by Michael Marth (Ottawa: Statistics Canada, 2008) at 2 [Juristat, Adult Crime, 2006/2007]. 107 See Juristat: Canadian Centre for Justice Statistics, Youth Court Statistics, 2006/2007, vol. 28, no. 4, by Jennifer Thomas (Ottawa: Statistics Canada, 2008) at 2 [Juristat, Youth Court, 2006/2007j. 108 See Juristat: Canadian Centre for Justice Statistics, Canadian Crime Statistics, 2006, vol. 27, no. 5, by Warren Silver (Ottawa: Statistics Canada, 2007) at 2 [Juristat, Canadian Crime, 2006]. 109 See 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]. 110 See e.g. Conservative Party of Canada, Stand Up For Canada: Federal Election Platform 2006, online: <>, at 21-28. 29 is not principally focused on reducing offences in order to create “safe, healthy communities” for all Canadians.” The relevant statistics also indicate that the criminal justice system is not set up to ensure extreme punishments are doled out to individuals convicted of crimes. The system neither hands out such punishments, nor does it appear inclined to do so. Indeed, Paciocco argues that the system’s current “credibility crisis” is predominantly caused by the fact that its fails to punish offenders adequately. On this point, he observes: [i]n Canada, people are getting away with murder. They are getting away, as well, with countless other atrocities. Every day in the courtrooms of this country, decent people, victims of crimes of brutality and wanton destruction, have to endure the spectacle of their tormentors swaggering out of court, acquitted of crimes they committed. Canadians thumb newspapers with disgust, reading yet again about another charge thrown out, or another sentence that does not reflect the suffering that the self-indulgent or pointless acts of the offender have caused.’12 The relevant statistics clearly support the notion that criminal sentencing in Canada is anything but purely punitive in nature. During 2004/2005, less than 70% of individuals under the supervision of a correctional service agency were physically in custody, and less than 70% of those were actually serving court-issued sentences. The rest were in custody on remand while awaiting trial, or were subject to some other form of non-sentenced custody.”3Over the same period of time, 41% of those imprisoned offenders who were serving court-imposed sentences spent 29 days or less in custody, while 68% of all offenders spent less than 90 days in a correctional institution114 The reality of sentencing in Canada has led to suggestions that protection of the community through the reduction of crime is not even a plausibly attainable goal for the criminal justice 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 our contention that punishing offenders can intimidate others into not committing sexual offences, drug offences, and crimes of 15 As this comment reflects, purely draconian notions of punishment do not drive current sentencing practices. That is certainly not to suggest that they should be. Nor is this fact advanced in an attempt to prove that Canada’s system of penal punishment is anything other than “Ibid at22. 112 Paciocco, 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. 30 deeply repressive in nature.116 To the contrary, increasing the severity of criminal sanctions generally bears no correlation to decreases in crime rates or actual levels of crime in society. In reality, more severe punishments serve to increase the negative effects that the criminal justice system 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 for evidence 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 admissions and 19% of admissions to conditional sentence.”7In addition to being over-represented in new admissions to penal custody, Aboriginals are also severely over-representation in existing adult prison populations throughout the country. For example, in Alberta, Aboriginals represent 4% of the total population and 38% of the prison population. In Ontario, they comprise 1% of the overall 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, Aboriginals account for only 4% of the total population, and 20% of the prison population.”8These numbers indicate that Aboriginals across Canada are undeniably subjected to harsh punishments for their criminal offences. Despite this reality, there is no indication that these criminal sanctions have worked to reduce the crime that occurs in their communities. Indeed, the statistics indicate that Aboriginal people: [w]ere more likely to have returned to correctional supervision in the two-year period following release in 2002/2003 compared to non-Aboriginal people in all jurisdictions where data were available. Almost half of all Aboriginal adults were re-involved in correctional services within two years following release (45%) compared to less than one-third of non-Aboriginal adults in the same 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 from correctional supervision in New Brunswick returned within two years.119 As a result, one of the segments of the Canadian population that is currently subjected to the harsh form of punishment in a clearly disproportionate manner nonetheless continues to commit crimes, thereby causing those individuals to reenter the punishment system in a cyclical fashion. 116 The criminal justice system’s disproportionate application to Canada’s most disenfranchised individuals is significantly exacerbated by the fact that the system appears to be developing in an even more overtly repressive direction. 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 since 1995/1996, the number of individuals housed in remand centres has skyrocketed. See Juristat, Adult Corrections, 2004/2005, supra note 113, at 4. 117 Ibid at 15-16. at 16. 119 Ibid at 13. 31 The Canadian criminal justice system’s treatment of Aboriginal people provides strong evidence that handing out increasingly harsh punishments does little to prevent crime, indicating that 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 on populations that are already socially marginalized. The existence of these issues, then, leads one to question what the current justice system is actually structured to achieve. Because the administration of Canadian justice is not set up solely to prevent crime, nor to severely punish individuals who are convicted of offences, it is necessary to ascertain what other purposes might be driving the investigation, arrest, and prosecution processes as they exist throughout the country. A logical place to begin this search is by referencing several influential historical treatments of the subject, particularly those that seek to uncover the true nature of criminal laws and penal sanctions. These examinations strongly indicate that criminal justice has long been geared toward the repression and oppression of the underprivileged and disadvantaged segments of the population. 2.2. Marxist conceptions of criminal justice One possible alternative purpose for the criminal justice system is that it is intended to assist in maintaining the social status quo. Such an argument can be traced back to the writings of Karl Marx, whose work is of particular relevance in this context. Unlike other influential authors who acknowledge the type of crimes that occur in society and then attempt to explain why such patterns 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, and then 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 criminal justice as it looks beyond the official crime statistics, attempting to explain why those statistics exist rather than assuming they are the inevitable result of the inherent criminal tendencies of the population. Marx’s recorded thoughts on crime and criminal justice are predominately expressed in his early works. The relevant tracts indicate that Marx’s analysis of law and crime focused on the notion that “crime” is what society’s ruling class says it is, as opposed to being only those acts 120 See e.g. Cesare Beccaria, Essay on Crimes and Punishments (Edinburgh: J. Donaldson, 1788); John Locke, Two Treatises ofGovernment (New Haven, CT: Yale University Press, 2003); and Jeremy Bentham, The Rationale of Punishment (London: C. & W. Reynell, 1830). 32 that 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 of the legislator, but ... it depends to some degree on official society to stamp certain violations of its rules as crime or as transgressions only. This difference in nomenclature, so far from being indifferent, decides on the fate of thousands of men, and the moral tone of society. Law itself may not only punish crime, but improvise it, and the law of professional lawyers is very apt to work in this direction.’2’ In an article written for the New York Tribune, Marx linked the production of crime to the bourgeois segment of society, writing that “[i]f crimes observed on a scale thus show, in their amount and their classification, the regularity of physical phenomena ... is there not a necessity for deeply reflecting upon an alternation of the system that breeds these crimes, instead of glorifying the hangman who executes a lot of criminals to make room only for the supply of new ones . 122 As these brief examples show, Marx’s early works contend that in societies stratified on the basis of class, the ruling elite and the systems of law they invoke to preserve and enhance those stratifications, play a direct role in both the production of crime and the creation of criminals. Despite these significant contributions, and regardless of the theories that were later founded 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 to Robert Fine: Marxist theory of law remains relatively undeveloped in comparison with Marxist critiques of political economy. One reason is that Marx himself never returned to the project he set himself in his youth: to complement his critique of political economy with a critique of jurisprudence there is no possibility of discovering a theory of law and legal relations ready-made in Marx’s work.’23 As a result, resort to Marx’s actual writings is of limited utility when attempting to conclusively ascertain the purposes of modern systems of criminal justice. Later Marxist conceptions of law in general 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 the repression and class bias inherent in modern criminal justice systems. In so doing, the 121 Karl 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. 122 Karl Marx, “Capital Punishment” in James Ledbetter, ed., Dispatches for the New York Tribune: Selected Journalism ofKarl Marx (Toronto: Penguin Group (Canada), 2007) 119 at 123. 123 Robert Fine, “Marxism and the Social Theory of Law” in Reza Banakar & Max Travers, eds., An Introduction to the Law and Social Theory (Portland: Hart Publishing, 2002) 102 [emphasis in original, footnotes omitted]. 33 argumentative focus shifted from the simple notion of bourgeois crime creation to the idea that the ruling elite used the criminal law to strengthen and enhance their grip on the bulk of society’s power and property. This development is particularly evident in the writing of Evgeny Pashukanis, whose active Marxism and “anti-law” theorizing made him an enemy of Joseph Stalin and the Soviet regime, eventually leading to his victimization and murder during one of the many “purges” that infamously occurred in the Soviet Union throughout the 1930s.’24 Prior to his death, Pashukanis was instrumental in developing the embryonic Marxist account of criminal justice. Pashukanis provides the context for his overall hypothesis regarding the interplay between criminal law and social class by observing that of all the various juridical areas and subject matters, it is the criminal law that has the most palpable and direct effect on the everyday actions of the individual.’25 For Pashukanis, this reality becomes problematic as societies transmute into forms characterized by relatively stable class stratifications. When this metamorphosis occurs, the criminal law becomes a tool utilized by the powerful social strata to perpetuate and intensify their struggle against the weaker elements of society.’26 On this point, he writes 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 criminal justice with entirely new problems. Criminal justice in this epoch is no longer simply a means for those in power to fill their coffers, but is a means of merciless and relentless suppression Pashukanis further observes that the criminal law is “[m]erely an adjunct of the investigative and police apparatus ...“, and argues that “[c]riminal justice in the bourgeois state is organised class terror, which differs only in degree from the so-called emergency measures taken in civil war.”128 Together, then, Pashukanis views the police, the criminal law and the penal system as comprising a formidable weapon that is routinely employed by the socially and economically privileged segments of society in order to secure and defend their positions of relative power against those who would wrest portions of that privilege for themselves. As these theories indicate, systems of criminal justice have been weighted against the relatively powerless segments of the population throughout history. Marx’s limited discussions 124 Peter H. Solomon, Jr., Soviet Criminal Justice Under Stalin (Cambridge: Cambridge University Press, 1996) at 194. 125 Evgeny B. Pashukanis, The General Theory ofLaw and Marxism (New Brunswick, NJ: Transaction Publishers, 2002) at 167. 126 Ibid at 173. 127 mid 128 Ibid 34 of crime and law introduced the idea that society’s power class created criminal justice systems with 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 criminal justice as a weapon to sustain and expand their grip on property and power while waging a legalized war on the numerically superior underclasses. Historically then, one of the deeply rooted purposes of criminal justice has been to ensure that the divisions of social class and power that have developed over the centuries are satisfactorily maintained. Rather than currently existing as the expressed intention of society’s dominant groups, the criminal justice system’s tendency to preserve these social injustices arose through an evolutionary process. Because the system itself is highly resistant to change, it works subconsciously to maintain its own compositional roots, including those negative aspects that developed centuries ago. This historical reality is routinely overlooked in contemporary discussions pertaining to individual rights in the criminal law context. 2.3. Not in my backyard: Repressing the repressiveness of Canada’s criminal justice system Popular discussions of the Canadian criminal justice system do not often broach the subject of the system’s historical inequalities. To the contrary, many judges, lawyers and mainstream legal academics credit the Charter with revolutionizing and equalizing a Canadian criminal justice system that was for the most part just prior to 1982. During a commemoration of the Charter ‘s 10th anniversary, Lamer C.J.C. pronounced that “[tlhe Charter has put Canada on the top of the list of countries watched and emulated by others. It has made the Canadian system of justice the flagship of the Commonwealth, and the Commonwealth countries are now looking more and more to Canada for guidance and inspiration.”29At the same conference, former Charter skeptic Joel 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, the Charter has adopted some principles, expanded others and created new rights. The protections gained have been both procedural and substantive ... During this first decade of implementation of the Charter, Canadian courts have diligently advanced the rights therein and have used old and new remedies to protect those rights. The Supreme Court has led this quiet revolution by taking a liberal and purposive approach to Charter interpretation, although in recent decisions, there is some 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 of Canada — had done much to increase the safeguards curtailing the arbitrary and improper 129 The 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. 130 Joel E. Pink, “The Charter and Criminal Justice: Ten Years Later” in Géreald-A. Beaudoin, ed., The Charter: Ten Years Later (Cowansville, QC: Les Editions Yvon Blais Inc., 1992) 99 at 100. 35 exercise of the substantial powers vested in the various appendages of the criminal justice system. Lamer C.J.’s remarks at the 1992 Canadian Bar association conference were not his only extrajudicial extolments of the equalizing effect of the Charter. The former Chief Justice would eventually become recognized as perhaps the most celebrated and enthusiastic of the Charter ‘s proponents. Shortly before the 10th anniversary, Lamer C.J. was quoting as suggesting that “[t]he introduction of the Charter of Rights and Freedoms a decade ago, on April 17, 1982, has been nothing less than a revolution on the scale of the introduction of the metric system, the great medical discoveries of Louis Pasteur, and the invention of penicillin and the laser . “.‘‘ In an interview given to Stephen Bindman on the document’s 15th anniversary, Lamer C.J. famously opined that “[i]f the Charter were explained to the people and the people realized what’s happening in other countries, they would then say, ‘Thank God for the Charter’ If Lamer C.J.’s comments are accepted as accurately relaying the entirety of the Charter story, one would indeed be hard pressed to imagine that the system in which that document exists is based in part on significant historical injustices. Despite the rhetoric regarding the egalitarian nature of the Charter and its beneficial effects 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 by the 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 1 8th and 19th centuries. This is particularly relevant in the Canadian context, as this English system is the very system of criminal justice that Canada effectively inherited in the mid 1 700s. In this way, the issues identified by the Marxists take on a direct relevance to Canada and its current methods of criminal justice and social control. As legal historian Douglas Hay hypothesizes, the English justice system existed primarily as a means through which the propertied class legitimized radical imbalances in wealth and power. Hay argues that property took on quasi-religious importance in 18t1i century England, stating that “[o]nce property had been officially deified, it became the measure of all things. 131 Jeff Sallot, “Top court becomes supreme player” The Globe and Mail (6 April 1992) Al. 132 Stephen Bindman, “15 years later, chief justice still a fan of the charter” The Edmonton Journal (20 April 1997), F2. 36 Even human life was weighed in the scales of wealth and status • No more than 3% of the English 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 wealthy used their criminal law as an ideological shield to protect themselves and their interests from the vast numerical superiority the underciasses. As Hay explains, “[t]he criminal law was extremely important in ensuring ... that ‘opinion’ prevailed over ‘physical strength’. The opinion was that of the ruling class; the law was one of their chief ideological instruments. It combined ... terror with ... discretion ... and used both to mould the consciousness by which the many submitted to the few.”35 Hay contends that the English criminal justice system performed its function of legitimization 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 for itself and thus the social status quo by performing its everyday functions as rituals replete with sufficiently befuddling pomp and circumstance. As Hay observes, “[c]oupled with wealth, a considered use of imagery, eloquent speech, and the power of death, the antics surrounding the twice-yearly visits of the high-court judges had considerable psychic force.”137 When they were not being dizzied by the regalia of the judges, the spectacle of the proceedings, or the terror of a public execution, the general populace was effectively placated by carefully crafted demonstrations intended to prove the law was just, and that it was indeed equally applicable to all individuals, regardless of their class, property, or degree of social power.138 To accomplish this, the 18th century English criminal justice system emphasized its rigorous adherence to the rules of procedure, often allowing well-founded prosecutions to fail simply 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 propertied creators. On this point, Hay writes that: [t]he punctilious attention to forms, the dispassionate and legalistic exchanges between counsel and the judge, argued that those administering and using the laws submitted to its rules. The law thereby became something more than the creature of the ruling class — it became a power with its own claims, higher than those of prosecutor, lawyers and even the great scarlet robed judge 133 Douglas Hay, “Property, Authority and the Criminal Law” in Piers Beime & Richard Quinney, eds., Marxism and Law (New York: John Wiley & Sons, 1982) 103 at 104. 134IbicL at 128. 135 Ibid at 108. ‘36Ibid 137 138 Ibid. at 111. ‘391b1d. at 112. 37 himself ... When the ruling class acquitted men on technicalities they helped instil a belief in the disembodied justice of the law in the minds of all those who watched. In short, its very inefficiency, its absurd formalism, was part of its strength as ideology. 140 The idea that the law applied equally to all was heightened by the purposeful execution of the occasional member of the upper class. As Hay states, “[ut was part of the lore of politics that in England social class did not preserve a man from even the extreme sanction of death. This was not, of course, true. But the impression made by the execution of a man of property or position was very deep.”4’Use of such tactics allowed the English power elite to successfully “[e]xtend that communal sanction to a criminal law that was nine-tenths concerned with upholding a radical division of property.”42 The final method through which the 18th century English system of criminal law was utilized by the powerful as ideology involved accentuating notions of its mercy. The main device in this regard was the pardon. It was used to mute the severity of penal statutes that had gradually increased the number of capital offences by over 400% between 1688 and 1820, the majority of which were associated with crimes against property.’43The pardon allowed the system to at once legitimize itself and demonstrate the inherent benevolence of the wealthy and the powerful. As Hay 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 the prevailing custom at all levels of criminal justice. Here was the peculiar genius of the law. It allowed the rulers of England to make the courts a selective instrument of class justice, yet simultaneously to proclaim the law’s incorruptible impartiality, and absolute determinacy. Their political and social power was reinforced daily by bonds of obligation on one side and condescension on the other, as prosecutors, gentlemen and peers decided to invoke the law or agreed to how mercy.’44 Hay concludes that the employment of these rhetorical devices allowed the English criminal justice system to be perceived as something it was not. Rather than being majestic, just and merciful, “[tjhe private manipulation of the law by the wealthy and powerful was in truth a ruling-class conspiracy, in the most exact meaning of the While 19th century England enjoyed a reform of the justice system as it had existed in the 18th century, the changes were not deeply rooted to the degree that real alterations occurred. In fact, the reforms adhered closely to the class-based interests of those who controlled the ‘‘ ibid at 113. 143 Ibid. at 103. ‘44IbicL at 120. 145 Ibid. at 122. 38 development of the criminal law. As Hay notes, calls for the abolition of the death penalty were largely the product of a growing middle class, whose “[plroperty was the prey of thieves undeterred 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 that is legitimized, however imperfectly, and therefore the state deals also in ideologies. Loyalties do not 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 a bloody penal code, an astute ruling class who manipulated it to their advantage, and a people schooled in the lessons of Justice, Terror, and Mercy. 147 Thus, although the exact form of the system may have changed, the substance of the criminal law remained largely the same. Hay’s discussion of the English criminal justice of the 18th and centuries is of particular relevance to contemporary Canada as the substance of that system forms the bedrock of the current Canadian criminal justice system. As Peter Hogg notes, Canada initially received the bulk of its system of law through the reception of English law — and to a lesser extent French law — by the colonies of British North America.148 Hogg points out that the English common law rules 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, and this became the initial law of the colony. In the case of a colony acquired by conquest, the law of the conquered people continued in force, except to the extent necessary to establish and operate the governmental institutions of British colonial rule. A colony acquired by cession (that is, by transfer from another country) was treated as acquired by conquest. 149 The matter of reception was significantly complicated by French claims to specific regions of British 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 of development.’5’ Although the dates of reception and the law received by pre-confederation Canada were not uniform, the eventual result was the imposition of the English legal tradition into the Canadian 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 received selected the date of ‘the institution of a local legislature in the colony’ as the date of 146 Ibid. at 127. 147 Ibid at 129. 148 See Peter Hogg, Constitutional Law of Canada Student ecL 2006 (Scarborough, ON: Thomson Carswell, 2006) at 32-33. 149 Ibid. at 32. ‘50IbicL 151 Ibid at 33-40. 39 reception.”52Using this method, it has been determined that in certain areas — such as the colony of Nova Scotia — the first dates of reception fall as early as 1758.153 The dates of reception matter less as far as the common law was concerned, which was considered to exist uniformly throughout the British Empire.’54 Thus, the form of law received in Canada was founded on the system described by Douglas Hay. As a result, the origins of Canadian criminal justice can be traced directly back to an century English legal system that was dominated by property interests, and was skillfully manipulated to maintain the social status quo. 2.4. Targeting the socially powerless The dubious origins of Canada’s current criminal justice system manifest themselves in the modern period in a number of important ways. Of particular significance is the fact that the administration of Canadian justice is disproportionately applied to certain segments of the Canadian population. Officially recorded crime is endemic among society’s marginalized and relatively powerless economic and racial groups. The relevant statistics indicate that an individual’s socioeconomic status has a direct bearing on their likelihood of coming into direct contact with agents of the criminal justice system. As Michael Mandel notes, “{a]mong those charged with criminal offences we find a severe overrepresentation of the poorest and most socially powerless people in Canadian society, characterized by the lowest levels of occupation and the highest levels of unemployment.”55 Furthermore, the vast majority individuals victimized by crime are also culled from society’s powerless social strata. On this point, Mandel observes that “[tjhe social class effects [are not] as obvious as they might seem from the fact that people charged with crime are overwhelmingly from the underclass or the working poor, because so are their vjctjms.”156 Similarly, Kent Roach observes that traditionally disadvantaged groups are overrepresented in crime victimization statistics, noting that “Aboriginal people in Canada [are] ... overrepresented among both prisoners and victims of crime. Gays and lesbians and the disabled ... were disproportionately victimized by some types of crime.”157 As a result, both the perpetrators and casualties of crime occupy the same economic and social sphere. What the official crime rates fail to conclusively prove, however, is that these disadvantaged groups are over-represented in criminal justice statistics only because they are at 34. ‘53IbicL at 33, n. 4. ‘54IbicL at 34-35. 155 Mandel, Legalization, supra note 99, at 181. 156 Ibid at 184. 157 Roach, Due Process, supra note 100, at 222. 40 inherently more criminogenic than their more socially powerful counterparts. In fact, there is no reliable evidence that this is the case. Rather, this overrepresentation occurs because the justice system is structured in such a way that it is more efficient at detecting certain forms of the criminal activity engaged in by society’s underciasses than it is at detecting those same crimes when they are committed by members of more advantaged, less targeted segments of the population. In this regard, Patricia Gray argues that “[sjocially marginalized groups are vulnerable to criminalization. What is ‘censured’ as crime in any society reflects not only its cultural and moral sensibilities, but also its political economy.”58 Similarly, critical criminologist 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 the urban ghettos who appear over and over again in the revolving doors of jails, courts and prisons.”59 The criminalization of marginalized communities inevitably means that the individuals who comprise those populations will have more first-hand experience with the criminal justice system, meaning that they are more frequently investigated and more frequently arrested. As a result, members of these groups also have more first-hand experience with violations of their core legal rights as such violations occur only during the investigation and arrest processes. The fact that underprivileged and socially marginalized groups are subjected to targeted policing 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 means that officers tend to focus primarily on narcotics offences, firearms offences, and property crimes, all which can often be investigated with simple searches of a suspect’s person, and substantiated with a small amount of real evidence. Such investigations are not typically complex and thus efficiently produce criminal charges that can be substantiated in court. In discussing the investigation of drug offences, Chambliss points out that “[dirug arrests are among the easiest to make, convictions not too difficult to obtain, and drug convictions often lead to the longest prison terms.”160 Essentially the same thing can be said for firearms offences. Police are eager to pursue these types of investigations as: “[o]rganizations reward members whose behavior maximizes 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’y 526 at 536 [Gray]. 159 William J. Chambliss, Power, Politics & Crime (Boulder, Colorado: Westview Press, 1999) at 63 [Chambliss]. 160 Ibid at 77. 41 poor, and those who fit the public stereotype of ‘the criminal’ are the human resources needed by law enforcement agencies to maximize gains and minimize strains.”6’ In order to minimize operational strains, crimes that are more difficult to detect, investigate and prosecute, such as sexual assault and domestic violence, remain as under-policed in socially disadvantaged neighbourhoods as they are throughout the rest of society.’62 There are other reasons why modern criminal justice is disproportionately applicable to society’s marginalized segments. Sociologists and criminologists suggest that society’s powerful classes highlight purported increases in the frequency and severity of crime in order to draw attention away from other societal issues, including poverty, racial bias and gender inequality. Properly confronting these issues would require the institution of fundamental changes to current social and economic arrangement. The individuals who benefit from these arrangements therefore have little incentive in pursuing the amelioration of these problems as doing so essentially runs contrary to their interests. Instead, they attempt to focus the population’s attention on high crime rates, and then push for the over-policing of powerless groups in order to show that something is being done to confront criminals. As Chambliss argues, the practice of over-policing effectively creates the impression that earnest attempts are being made to combat crime as: [a]rrest is organizationally effective only if the person arrested is relatively powerless. Arrests of white male middle-class offenders ... are guaranteed to cause the organization and the arresting officers 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 officer because the cases are quickly processed through the courts, a guilty plea is obtained, and the suspect is sentenced. 163 While this organizational effectiveness provides clear benefits to police forces and individuals interested in appearing to be “tough on crime”, it also has obviously negative repercussions for the individuals who are targeted for over-policing. Focusing the state’s arrest power on those who are least able to legally defend themselves creates a false impression of crime patterns and exaggerates the extent of criminal activity in certain areas. It also falsifies the impact of the core legal rights as those rights only have effect if individuals invoke them during the investigation and 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. 161 Ibid. 162 Janine 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. 163 Gray, supra note 158, at 536. 42 In further commenting on the practice of over-policing socially marginalized groups in the United States, Chambliss argues that politicians use the general fear of crime to draw the public’s attention away from bona Jide social issues, the resolution of which would erode the traditional hegemonic power bases. The public is easily distracted by this tactic as it appeals to their 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’s control and the repression and isolation of criminals. On this point, Chambliss contends that contrary 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 political dissent; (2) the media, ever hungry to attract readers and viewers with issues that captivate the imagination and fears of the public; and (3) the law enforcement establishment, with an insatiable appetite for public funds and public approval.’TM Chambliss argues that these groups have tirelessly produced propaganda designed to ingrain the fear of crime on the psyche of the American people, despite the fact that “[viery few Americans are the victims of crime and the vast majority feel that the neighbourhood where they themselves live is safe.”65 The “ghettoization” of crime and the concomitant expansion of criminal justice have “[nlot only siphoned scarce resources away from education, welfare, and other social expenditures. The Wars on Crime and Drugs has also led to the institutionalization of racism by defining the crime problem as a problem of young black men and women.”166 The creation of a moral panic surrounding crime and criminals has a disproportionately negative effect on the economically and racially marginalized segments of society. As Chambliss observes, “[t]he public image of crime in the United States is not racially neutral. The media and the 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 Wall Street.”67 Such misinformation has negative consequences as the perpetuation of “[t]he myth that crime is out of control ... leads inevitably to the arrest and incarceration of the poor. Since African Americans are disproportionately poor in the United States the result is closely akin to ‘ethnic cleansing.”68 Similar to what Mandel has observed in the Canadian context, Chambliss suggests that once crime is satisfactorily publicized and sufficiently ghettoized, the people living in those 164 Chambliss, supra note 159, at 27-28. 165 Ibid at 28 [emphasis in original]. 167 Ibid at 55. 168 Ibid. 43 ghettos become immediately over-policed, over-arrested and over-incarcerated. Police target such areas because of the relative ease of arrests and the greater certainty of convictions, both of which are important to the advancement of the individual officer’s career.169 Chambliss argues that when these social realities are acknowledged, the ideological claim of equal justice for all is reduced 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.”70 The theories advanced by Mandel and Chambliss indicate that administration of contemporary criminal justice is disproportionately applied to individuals belonging to relatively powerless racial and economic groups. Rather than evolving as a matter of historical necessity, the selective application of criminal justice has occurred because politically and economically powerful groups have created moral panics over purportedly high and ever-increasing levels of crime. Instead of existing as true representations of societal conditions, these panics are developed in order to deflect popular concern away from the widening gap between rich and poor, and the continuing social and economic marginalization of minority groups. The disproportionate application of criminal justice to certain groups has a significant impact on the core legal rights of the individuals who compose those groups, particularly when the practices commonly employed by Canadian police are taken into account. 2.5. The nature of Canadian policing171 Within the context of a criminal justice system that is disproportionately applied to members of certain social groups, several aspects of the way in which the policing function is carried out in Canada are directly relevant to the practical impact of the Charter ‘s core legal rights, and thus in turn, to the interpretation and application of s. 24(2). First, the occupational subculture to which police officers belong encourages the exhibition of negative attitudes towards the individuals being investigated, the rejection of external interference in the day-to-day operations of police forces, and a general resistance to court rulings that enhance individual rights protections at the expense of police powers. Together with the relative impossibility of establishing effective and impartial supervision of individual officers in the field, the police occupational subculture leads to the frequent taking of procedural and investigatory shortcuts at the expense of core legal rights, the ex post facto manipulation of testimonial evidence so that police misconduct is ‘69Jbjd at 77. 170 Ibid 171 A version of this subsection has been accepted for publication. Hauschildt, Jordan, “Blinded by Faith: The Supreme Court of Canada, s. 24(2) and the Presumption of Good Faith Police Conduct” (2009) Crim. L.Q. 44 satisfactorily shielded from external scrutiny, and ultimately the over- investigation of certain individuals based on irrelevant and immutable personal characteristics. If s. 24(2) is to ensure the core legal rights serve as more than the means of legitimizing a disproportionately applicable criminal justice system, Canada’s exclusionary rule must take into account the manner in which the country’s streets, neighbourhoods and peoples are being policed. 2.5.1. “It’s us against them”: The police woridview Police officers work in an environment characterized by a distinct occupational subculture.’72 This subculture effectively creates an operational mentality amongst individual officers that has the potential to significantly affect how they perform their day-to-day policing duties. According to criminologist Janet Chan, the concept of “police culture” refers to the “[l]ayer of informal occupational norms and values operating under the apparently rigid hierarchical structure of police 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 pessimistic perspective regarding the social environment, an attitude of constant suspicion, an isolated social life 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 and respectable. Among these characteristics, the so-called ‘siege mentality’ and ‘code of silence’ have often been linked with the concealment and proliferation of police misconduct.’74 Although Chan’s research pertains mainly to police forces in Australia, Canadian scholars have also noted the existence of police occupational subcultures, and have studied how they affect the institution of policing in this country. For example, lawyer and criminologist David MacAlister has 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.”175 The police are by no means the only profession to have a developed occupational subculture, and both Chan and MacAlister suggest that the police culture is neither entirely static nor purely monolithic.’76 There is evidence, however, that although the police occupational subculture is not totally resistant to change, it does retain a degree of stability over time and across physical borders. In this regard, Chan reports that the “fundamental culture” of policing is similar from police force to police force, from region to region, and from country to country. 172 The 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 University Press, 1997) at 43 [Chan]. at 43-44 [footnotes omitted]. 175 David MacAlister, “Canadian Police Subculture” in Stephen E. Nancoo, ed., Contemporary Issues in Canadian Policing (Mississauga, ON: Canadian Educators’ Press, 2004) 157 at 158 [MacAlister]. 176 Ibid at 160; Chan, supra note 172, at 44. 45 Indeed, criminologist Jayne Seagrave argues that aspects of the police culture prevalent in more heavily 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 the United States, England and, to a lesser extent, in Canada as a way to conceptualize and understand the activities of the police. Sociological studies of police work in Canada indicate similar patterns to those found in Britain and the US.”77 The similarities in occupational subculture that exist across regional and territorial boundaries 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 personal danger to which officers are exposed in the course of their employment, their position of relative authority vis-à-vis ordinary civilians, and their ability to exercise coercive force in the fulfillment of their day-to-day employment responsibilities.’78Because these universal characteristics drive both the creation and the content of the police occupational subculture, the subculture itself takes on a universality of its own and as such, is not limited to the specific historical or social conditions that exist in a particular region or country. In addition to the commonality of police culture from country to country, numerous studies have uncovered an unmistakably authoritarian nature common to both the police occupational culture and the way in which policing is actually carried out in society. In this regard, policing is seen as reflective of — and responsive to — the needs and goals of society’s dominant classes. On this point, Canadian legal scholar Margaret Beare argues that: [t]he police are empowered to enforce the moral, political, economic, and social consensus determined by the legislative and criminal justice systems. Charged with a mission of imposing order on chaos, and mythologizing themselves as the ‘thin blue line’ protecting the democratic consensus of acceptable behaviour, from those who would seek to challenge it, it is unsurprising that police behaviour seems discriminatory to those who remain outside of the status quo Beare’ s contention, then, is that the police reproduce the concept of social society that has been established by society’s powerful groups and classes. This concept serves to protect the interests of these groups at the expense of other, less powerful individuals. Similarly, John F. Galliher observes that in the United States: [m]uch of police behavior seems most easily explained if one considers that whenever there is a conflict of interests between the dominant classes in a society and less powerful groups, the police 177 Jayne Seagrave, Introduction to Policing in Canada (Scarborough, ON: Prentice-Hall Canada Inc., 1997) at 119 [Seagrave] [references omitted]. 178 Chan, 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 Toronto Press, 2007) 313 at 354. 46 protect the interests of the former and regulate the behavior of the latter. The police role attracts authoritarian individuals and increases their authoritarianism once on the job. Perhaps this happens because of the demands made upon the police to suppress economic and racial minorities. Such tasks are most attractive to the authoritarian personality and undoubtedly any of an officer’s initial doubts about such activities are lessened by an increasingly authoritarian orientation. 180 The supposition is that in socially and economically stratified societies, the profession of policing attracts authoritarian-minded individuals willing to protect the status quo. The occupational culture of policing in turn creates patterns of behaviour designed to reinforce the authoritarian views of those attracted to the occupation, while at the same time facilitating methods 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 and keep secret suppression of economic and racial minorities.”8’ Moreover, critical analysis of police culture commonly indicates that differences exist between 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 amongst members of these groups differ substantially.’82 With regard to the latter group, Chan has observed that street cops commonly exhibit “ [c]ontempt for the criminal justice system, disdain for the law and rejection of its application to the police, disregard for the truth, and abuse of authority’ ,,183 Similarly, MacAlister notes that: [p]olice view the other components of the criminal justice system as inefficient, and often working at cross-purposes to police. Judges are viewed as soft on crime. Defence lawyers are despised for vigorous cross examination of police witnesses and complainants. Correctional rehabilitation programs are believed to coddle offenders. Law makers are criticized for liberal approaches to justice issues. Even the police hierarchy is criticized for inefficiency and lack of support for police on the street.184 As the occupational subculture of the “street cop” plays the lead role in the majority of officer suspect interactions, it is this subculture that is most directly relevant to the propriety of police investigatory conduct in the field. As the descriptions offered by Chan and MacAlister suggest, street cops possess negative occupational characteristics that have the potential to severely impair the ability of police to 180 John F. Galliher, “Explanations of Police Behavior: A Critical Review and Analysis” (1971)12 The Sociological Quarterly 308 at 312-3 13. 181 Ibid at 313. 182 Chan, 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 an Official Culture” (1991) 2 Organization Science 170. 183 Chan, ibid. at 46. 184 MacAlister, supra note 174, at 171. 47 investigate individuals fairly and impartially. The police tend to view themselves as the “last line of defence” between a minimally civil society and a Hobbesian state of nature,’85 and therefore view the people whom they police with intense suspicion and often outright disdain. Although the police are undoubtedly subject to intense organizational scrutiny, the day-to-day actions of individual officers are not supervised in any meaningful way. This issue is rendered all the more significant as individual police officers cannot be realistically relied upon to satisfactorily regulate one another. 2.5.2. Policing in the penumbra The overwhelming majority of police work occurs beyond external scrutiny, in an environment that is only realistically amenable to self-regulation. The practical nature of policing therefore situates the majority of officer-accused interactions beyond the scope of any supervisory body capable of independent oversight. According to Janet Chan, the fact that police forces are typically structured as organized bureaucracies does not lead to effective supervision of individual officers in the field. On this point, Chan observes that “[pJolice officers exercise extremely wide discretion at the street level ... with little or no supervision.”86Moreover, as the Honorable 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 tell you who, under our existing law and institutions, will watch the watchman — the policeman — in the sense of holding him individually accountable when he breaks one law in his effort to enforce another.’87 This means that only the direct participants — the arrester and the arrestee — are able to observe and 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 events will enjoy a numerical advantage, and often at least some degree of corroboration.’88The lack of independent external observation ensures that all reviews of officer-accused interactions ultimately depend upon the various versions of events subsequently proffered by the direct participants. This dependence becomes increasingly problematic when the opposing parties relate contradictory and irreconcilable conceptions of what actually occurred on a specific occasion. 185 See Thomas Hobbes, “Leviathan” in Stevan M. Cahn, ed., Classics of Western Philosophy (Indianapolis: Hackett Publishing 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.”). 186 Chan, supra note 172, at 44. 187 Warren E. Burger, “Who Will Watch the Watchman?” (1964) 14 Am. U. L. Rev. 1 at 2. 188 See 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. 48 There is reason to believe that as technological advances occur, some of the invisibility of police actions in the field will be lessened, if not removed altogether. Advances such as readily available handheld recording devices and in-dash cameras on patrol cars have helped reveal some of the details of officer-accused interactions. Indeed, Canadian scholars Richard V. Ericson and Kevin D. Haggerty suggest that the nature of police work has led to increasing surveillance in recent times. On this point, the authors observe that: [t]here is probably no occupation as thoroughly scrutinized as the police. This surveillance arises out of distrust, which is endemic in risk society. There is a belief within the criminal justice system itself that, given the opportunity, police officers will routinely avoid duty, make grave errors, fabricate evidence, and generally operate according to the informal rules of their occupational culture rather than adhering to formal administrative or criminal law rules.189 Despite increasing levels of surveillance, the majority of police investigatory actions still remain beyond the purview of external scrutiny. There is considerable evidence that police engage in misconduct while operating in the relative security of their low-visibility work environment. As Chan explains, the lack of independent external supervision combines with the personalities of individual officers and the particularities 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 in decisions to stop, search or arrest suspects. Such discretion is often informed by stereotypes of what constitutes ‘normality’ or ‘suspiciousness’. The occupational culture, therefore, condones various 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 of this culture, ensures that deviant practices are either covered up or successfully rationalized.’90 The day-to-day operation of policing, then, involves largely invisible discretionary decisions made by officers who often hold prejudicial and discriminatory views. Other officers who either share the same views as the decision maker, or who are bound to defer to that officer’s decision by virtue of the police occupational culture, are the actors who are in turn called upon to scrutinize this conduct. In these circumstances, the task of bringing police misconduct to light is a difficult one. James Stribopoulos argues that the low-visibility of police operations routinely leads to unjustified arrests. Stribopoulos has extensively examined arrest powers in Canada, paying specific attention to the Supreme Court’s attempt to employ the Charter to regulate the police 189 Richard V. Ericson & Kevin D. Haggerty, Policing the Risk Society (Toronto: University of Toronto Press, 1997) at 60 [Ericson & Haggerty]. 190 Chan, supra note 172, at 44. 49 power of arrest.’9’ He discusses the on-the-job difficulties experienced by individual officers when interpreting the judicially imposed “reasonable and probable grounds” standard, now a prerequisite to a lawful arrest. Stribopoulos acknowledges that when interpreting this vague standard, police officers sometimes commit well-intentioned errors, and sometimes engage in intentionally abusive arrests.192 With respect to the latter, he observes that: [w]hile Canadian courts assume that the “reasonable and probable grounds” standard provides an effective safeguard against unjustified arrests, in reality, this vague standard may actually contribute to police error. In addition, there is a real risk that the police may periodically misuse or even abuse their arrest powers. Unfortunately, in any system that vests individual police officers with the authority to take suspects into custody, unjustified arrests are somewhat inevitable. The main problem with the current Canadian regime is not an unusually high risk of unfounded arrests, but the low visibility of police arrest decisions.’93 Stribopoulos attempts to limit the scope of abusive arrest practices by suggesting that only “some rogue officers” engage in such behaviour.’94 The reality of the situation, however, is that the majority of officer-accused interactions are unobservable by any independent source, and thus the propriety of those interactions can only be presumed. Rather than simply presuming that police misconduct is limited to distinct pockets of rogue officers, MacAlister challenges that “[t]he police subculture provides police officers with the 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 under overlapping headings: police misbehavior; police corruption; and police abuse of power.’96 Regardless of how police improprieties are specifically defined, Seagrave argues that such conduct has broad repercussions, stating that “[i}t is important to note that the fallout caused by police deviance extends beyond the department itself. It facilitates criminality, decreases law enforcement, and reduces public confidence in the police, inhibiting citizen cooperation with crime prevention measures.”97 The work of these authors demonstrates that there is both the opportunity and the occupational willingness for police to engage in significant professional misconduct, and even directly illegal behaviour. Because of the occupational subculture that exists within the police 191 See James Stribopoulos, “Unchecked Power: The Constitutional Regulation of Arrest Reconsidered” (2003) 48 McGill 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”]. 192 Stribopoulos, “Power”, ibid. at 244. 193 Ibid at 251. ‘94Ibid at 245. MacAlister, supra note 174, at 184. 196 Seagrave, supra note 176, at 184-185. ‘971b1d. at 185 [references omitted]. 50 hierarchy, and because police work occurs in the relative absence of meaningful external criticism, misconduct is not only possible, it is prevalent. The frequency of police misconduct has a decidedly negative impact on the function of policing as well as on the core legal rights of those who are policed. Because the socially powerless are targeted by current police operation practices, the most prevalent forms of police misconduct are capable of remaining invisible provided 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 rulings The relevant evidence indicates that in general, street cops exhibit an occupational resistance to those Charter rulings that serve to increase civil liberties protections at the expense of police powers. Although several commentators have concluded that the police do not actively attempt to circumvent court rulings pertaining to the rights of the accused,’98 others suggest that their acceptance of such decisions is far more uniform at the official, managerial level of the police occupational culture than it is amongst the various “street cop” subcultures that exist in police forces throughout the country. The street cop’s resistance to Charter rulings is of great significance as these officers are ultimately responsible for the practical impact of the Supreme Court’s civil liberties rulings. This resistance also serves to render the management culture’s acceptance of the decisions purely symbolic, as it is the street cops who retain the ability to negate whatever degree to which there actually is managerial adherence to Charter developments. The purported willingness of the police to implement the Supreme Court’s Charter rulings is often highlighted by proponents of the deterrence rationale for the exclusion of unconstitutionally obtained evidence.’99However, the empirical evidence suggests that the actual police response to Charter rulings is at best mixed, indicating that individual officers merely adapt to those rulings that they cannot avoid.200 According to a study undertaken by Kathryn 198 See Reginald A. Devonshire, “The Effects of Supreme Court Charter-Based Decisions on Policing: More Beneficial than Detrimental” (1994) 31 C.R. (4th) 82; and Katharine Moore, “Police Implementation of Supreme Court of Canada Charter Decisions: An Empirical Study” (1992) 30 Osgoode Hall L.J. 547 [Moore]. 199 See e.g. Penney, “Deterrence”, supra note 59, at 115-116 (arguing that police officers willingly abide by court rulings that interpret core legal rights, and that they do so primarily because they actively desire to avoid the exclusion of reliable, probative evidence); and Diana Lumba, “Deterring Racial Profiling: Can Section 24(2) of the Charter Realize its Potential?” (2006) 22 Windsor Rev. Legal & Soc. Issues 79 at 91 [Lumba] (arguing that police abide 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 police misconduct at issue is identifiable by defence counsel and easily litigable at trial). 200 See e.g. David A. Klinger, “Environment and Organization: Reviving a Perspective on the Police” (2004) Annals of the American Academy of Political Science 119 at 129 (detailing the tepid response of U.S. police forces to the ruling in Miranda v. Arizona). 51 Moore, both the Royal Canadian Mounted Police and the municipal police forces examined took steps to implement landmark Charter rulings, primarily through the institution of new departmental policies.20’The study reported that the police generally perceive the Charter as a positive development, inculcating Moore to surmise that police “[aittitudes are not a significant impediment to implementation and that “[tjhe police have managed to cope with new requirements imposed by the Charter and have effectively implemented changes to standard procedures.”203 Despite Moore’s conclusion, the study revealed numerous troubling aspects of the police attitude 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 institutional resistance to this type of judgment. Such a reaction is hardly supportive of a presumption that the police act in good faith when required to adhere to the dictates of those decisions. More realistically, it suggests that individual officers will begrudgingly abide by whatever policy changes are eventually implemented by police management. However, when no such changes are made, there is no indication whatsoever that police officers attempt to abide by the dictates of court rulings. Indeed, in R. v. Schedel,204 the Vancouver Police Department Drug Squad maintained an official policy in violation of the common law “knock/notice” requirement for search warrant executions. This policy was still in place despite the fact that the Supreme Court’s ruling R. v. Genest205 held that evidence obtained in violation of the common law rule was necessarily excluded under s. 24(2),206 and despite the fact that Genest was issued more than ten years before the execution of the search impugned in Schedel. The clear supposition is that individual officers adhere to Charter rulings when they have no other choice but to do so. Their lack of choice stems primarily from departmental policies implemented 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 not so long as somebody told them exactly what they had to do in order to comply with its requirements.”207 Officers who do not care about the Charter simply cannot be presumed to act in a manner that ensures its provisions are complied with to the greatest extent possible. Moore’s 201 Moore, supra note 197, at 563-565. 202 Ibid at 572. 203 Ibid at 577. 204 2003 BCCA 364, 175 C.C.C. (3d) 193 [Schedel]. 205 [1989] 1 S.C.R. 59, 45 C.C.C. (3d) 385. 206 Schedel, supra note 203, at paras. 26-27. 207 Moore, supra note 197, at 571. 52 study uncovered even more troubling evidence in this regard, reporting first that officers tend to prefer unclear Supreme Court rulings as those decisions leave “police room to manoeuvre.”208 Furthermore, the study found that even individual officers who intend to abide by Charter rulings are themselves concerned that ambiguous court decisions create “[t]he possibility that police officers would be able to evade the spirit of particular Supreme Court decisions.”209 The available evidence is therefore highly indicative of a police occupational culture that — at least at the street cop level — is willing to ignore Charter rulings issued by the courts whenever it is possible 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 associated with the police occupational subculture willingly adhere to the intricacies of those decisions while operating in their low-visibility work environment. 2.5.4. “Testalying”: The practice of police perjury Not only does the evidence suggest that street level police officers tend to view the legal limitations placed on their investigatory powers as frustrating technical impediments, it also indicates that these officers often fabricate the details of their interactions with members of the public in order to cast their conduct in the most favourable light. Simply stated, there is a general willingness within the street cop occupational subculture to lie whenever doing so is deemed necessary to secure the introduction of incriminating evidence or the conviction of suspects who are believed to be factually guilty. Paciocco links this willingness to lie directly to the Supreme Court’s development of s. 24(2), stating that “[t]here is also reason to believe that disproportionate remedies encourage police officers to lie about how evidence was obtained to avoid the loss of what they honestly believe to be valid convictions.”211 Paciocco’ s observation in this regard is itself based on evidence of testimonial misconduct by police in the United States. In a debate between the Honorable Harold Rothwax and Allan Dershowitz moderated by Robert Cossack,212 Dershowitz discussed the effects of the 208 Ibid at 572 209 Ibid 210 See e.g. Kirk Makin, “The cutting edge of the law: Growing body of rulings has breathed life into Charter” The Globe and Mail (13 April 1987) A5 (reporting Niagara Regional Police deputy chief John Shoveller’s response to the Charter: “We have had some terrible, terrible decisions. I think a lot of people are now totally frustrated and disgusted 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.”). 211 Paciocco, “Dichotomy”, supra note 59, at 175. 212 Robert Cossack, “Are Too Many Guilty Defendants Going Free?” (1995-1996) 33 Am. Crim. L. Rev. 1169. 53 U.S. exclusionary rule on the veracity of viva voce evidence proffered by police at criminal trials. On this point, Dershowitz argued that the exclusionary rule: [c]Iearly encourages “testalying” and police perjury. Joe McNamara, the former police chief of San Jose and Kansas City [suggests] that in his view, hundreds of thousands of cases of felony police perjury occur in the courts in the United States every year — hundreds of thousands — and he limited that just to drug search and seizure cases. The Police Commissioner for New York, former Police Commissioner of Boston, attested that testifying is a serious problem. It is interesting that when Mapp came up, D.A. Hogan of New York wrote a brief; an amicus brief; to the Supreme Court saying, “Please don’t enact an exclusionary rule that will encourage police to lie.” He was right.213 The high rate of police perjury is indicative of an occupational culture willing to secure criminal convictions by any means necessary. Rather than encouraging police to lie, a strong exclusionary mechanism should instead encourage them to abide by the terms of the core legal rights in order to avoid triggering operation of the rule in the first place. In addition to Dershowitz and Paciocco, other academics have attempted to confront the issue of police perjury. In arguing that judicial regulation of the investigatory powers of police has 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 been called ‘pervasive,’ ‘an integral feature of urban police work,’ and the ‘demon in the criminal process.”214 Dripps further argues that judges are often forced to choose between the competing statements of fact provided by police officers on the one hand, and the criminally accused on the other. He suggests that these situations are typically resolved in favor of the police, observing that “[t]he police story may be improbable, but police officers must be presumed honest, and the defendant’s word is worthless.”215 The officers must be presumed honest as “[t]he trial judge can discredit the police testimony only by branding the police as liars and accepting the word of an apparent felon.”216 Despite the fact that courts are extremely loathe to brand police as liars, the evidence suggests that in many cases, there is simply no other accurate way to describe the subject officers. In discussing the overwhelming presence of police perjury in criminal courtrooms, Dripps observed that “[ijn some ways, the problem is not only too large to ignore, it is too large to address. It would require judges, lawyers, and academics to admit that much of what they attempt to achieve by way of regulating the police is futile and naive.”217 213 Ibid at 1177. 214 Donald A. Dripps, “Police, Plus Perjury, Equals Polygraphy” (1996) 86 J. Crim. L. & Criminology 693 at 693. 215 Ibid at 696. 216 Ibid 217 Ibid at 701. 54 Though the issue of police perjury has not been as heavily scrutinized in Canada as it has been 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 rectifying wrongful 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 as a common occurrence Moreover, Seagrave has argued that there is a real risk that Canadian police will “[tIell lies in court or to police commissions and inquiries to protect fellow officers.”219 Several recent criminal trials have also documented the willingness of police to lie in order to justify the illegitimate aspects of their investigatory conduct.22°Additionally, John Epp 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 who investigate crime. The disturbing police conduct includes: perjury; the fabrication of evidence; destruction of evidence; negligent, or intentional, inaccuracy in the recording or gathering of evidence; failure to fully investigate other logical suspects; and failure to disclose to the Crown attorney such acts and omissions. This is a familiar inventory; in varying degrees, similar incidents have occurred in investigations carried out by some members of most of the police services in Canada.221 Though these examples are largely anecdotal in nature, they are nonetheless indicative of a pattern of behaviour amongst Canadian police that demonstrates police perjury is relatively common. These examples also provide further evidence of the existence of a police occupational subculture that both condones and encourages the practice. Furthermore, the relevant case law indicates Canadian courts are both unwilling and unable to deal directly with the issue of police perjury. There are few instances in which police officers are prosecuted for fabricating testimony, a fact indicative of the extremely heavy burden placed upon those who attempt to bring examples of police perjury to light.222 Moreover, even when there are specific judicial findings of police perjury, the practice is often rationalized as engaged in only by a limited number of rogue officers.223 Such cases indicate that Canadian courts are generally unwilling to acknowledge the systemic nature of police perjury, thereby 218 Dianne 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. 219 Seagrave, supra note 176, at 185. 220 See 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 that while 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). 221 John Arnold Epp, “Penetrating Police Investigative Practice Post-Morin” (1997) 31 U.B.C. L. Rev. 95 at para. 3. 222 See Christine Boyle, et at., “R. v. R.D.S.: An Editor’s Forum” (1998) 10 Can. J. Women & L. 159 at 194. 223 See e.g. R. v. Ghorvei, (1999), 46 O.R. (3d) 63, 138 C.C.C. (3d) 340 (C.A.) (ruling that the validity of an arresting officer’s testimony could not be attacked on the basis that the same officer’s credibility had been successfully impeached in an unrelated case.). 55 ignoring the negative impact that the practice has on the legitimacy of policing. Because the majority of officer-accused interactions are unobserved, only the investigating officers know the true reasons why particular persons are signaled out for investigation. The officers are thus the only sources from which a full understanding of the facts can be generated. If the officers involved in police investigations do not routinely supply reliable information, if police perjury is indeed endemic, it calls into question both the validity of the police function itself, and the validity of the fact-based criminal trial process that is essentially inseparable from the police function. The practice of testalying clearly has negative repercussions for all criminally accused individuals, 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 marginalized individuals who come before the criminal courts often do so with a record of prior criminal convictions, a notion substantially borne out by the official statistics on criminal recidivism. The presence of a prior criminal record in turn increases the likelihood that the officer will be believed and the accused’s version of events will be rejected. That such a scenario will often unfold is well known to the accused in advance of formal criminal proceedings. If they are aware that 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 less liable to pursue redress for a violation of their core legal rights. Indeed, the well known fact that police perjury is an accepted testimonial practice likely results in numerous unjustified guilty pleas and charge bargains, a reality that undeniably impacts more negatively upon the social groups to whom the criminal justice system is over-applied. The practice of testalying therefore serves to indirectly reduce the practical effectiveness of the Charter ‘s due process protections by creating systemic obstacles to their enforcement. 2.5.5. The practice of racial profiling It is now a widely accepted fact that the police routinely engage in racial profiling while carrying out their investigatory and patrol functions. The judiciary — normally quite reticent to acknowledge even more innocuous forms of police misconduct — has acquiesced to the reality of 56 racial profiling.224 David Tanovich, a noted critic of the practice, defines the problem in the following 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 these factors rather than objectively reasonable grounds to suspect that the individual is implicated in criminal activity. Racial profiling operates as a system of surveillance and control. It “creates racial inequalities by denying people of color privacy, identity, place, security, and control over [their] daily life.”225 Tanovich uses this definition as the basis for his argument that racial profiling arises out of systemic racism prevalent in Canadian society and that as such, it operates on a subconscious as well as a conscious level.226 Tanovich therefore posits that the problem of racial profiling cannot be rationalized and minimized by suggesting that it results out of the actions of a few racist police officers. Instead, he observes that “[e]ven where an officer claims to be appropriately focusing on suspicious behaviour (the hallmark of good policing), it may be a racialized stereotype that is driving the apprehension of suspicion, and, where this happens, racial profiling has occurred.”227 Stribopoulos similarly acknowledges that both conscious and subconscious racial profiling occurs, and that it has an appreciable affect on the type of individual whom officers single 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 arrest powers. Much more likely, however, is the risk that many more police officers subconsciously operate on the basis of stereotypical assumptions regarding visible minorities. An officer’s assessment of his or her grounds for arrest may be partially skewed by a belief that certain visible minorities are more likely to commit crimes.228 The true danger of racial profiling, then, is the fact that it operates at a subconscious level, and that its purveyors may be unaware that racialized notions of crime and criminality are influencing their decisions to stop, search, and ultimately arrest. Although courts have acknowledged that racial profiling occurs, there is by no means a general 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 are 224 See for example R. v. Brown (2003), 64 O.R. (3d) 161, 173 C.C.C. (3d) 23 (C.A.); R. v. Nguyen, [2006] 139 C.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.). 225 David 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. 227 Ibid. at2l. 228 Stribopoulos, “Power”, supra note 190, at 244 [footnotes omitted]. 57 strongly indicative of the racial undertones of officer-accused interactions. In R. v. Grant,229 a routine patrol by three police officers — two in plainclothes and one in uniform — of a downtown Toronto neighborhood resulted in the arrest of a young black male for weapons and narcotics offences.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 environment for 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 his clothing in a way that was “[j]ust kind of a little bit ... suspicious The police eventually stopped and questioned the accused,233 blocking his path on the sidewalk, leaving him with no direction in which to turn. Once engaged in this questioning, he eventually admitted to possessing 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 Ontario Court of Appeal held that police had detained the accused, that they had no reasonable and probable grounds for the detention, and that as a result, the accused’s rights under s. 9 of the Charter had been violated.236 The 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.”237 The Court of Appeal additionally ruled that the conscriptive evidence was not independently discoverable.238 Despite these findings, Laskin J.A. made the following observations: [fjirst, the admission of all conscriptive evidence, including derivative evidence, will have some impact on trial fairness. Second, if we do not have an automatic exclusionary rule for conscriptive evidence, then we must recognize that even though the admission of conscriptive evidence compromises trial fairness, its admission will not always bring the administration of justice into disrepute. And third, whether conscriptive evidence should be admitted will depend both on the resulting degree of trial unfairness and on the strength of the other two Collins factors.239 Based on his conclusion that not all conscriptive evidence that renders the trial unfair will be excluded under s. 24(2), Laskin J.A. ruled that the criteria to be used when assessing whether the 229 (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.]. 230 Ibid. atparas.4, 17. 231 Ibid. atpara. 19. 232 IbicL 233 Ibid. 234 Ibid 235 Ibid at para. 4. 236 Ibid. at para. 30. 237 Ibid at para. 46. 238 Ibid at para. 47. 239 Ibid at para. 52. 58 conscriptive evidence renders a trial sufficiently unfair include “[tihe potential effect of the state’s misconduct on the reliability of the evidence, and the nature of the police’s conduct that led to the accused’s participation in the production or obtaining of the evidence.”240 In applying these criteria to the facts of the case before him, the Laskin J.A. held that the evidence was sufficiently reliable,24’that the police merely “[aisked a fairly innocuous set of questions ...“, and that “[t]hey overstepped the bounds of legitimate questioning, but not grossly so.”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 the evidence, suggest that though the admission of this evidence would have had some impact on trial fairness, that impact would have been at the less serious end of the scale. Put differently, in my view, the impact would not have been so great that it precludes consideration of the other two Collins factors.243 The Justice thus decided that despite the accused’s trial being somewhat unfair, it was not sufficiently so to render the evidence excludable on that basis alone. By focusing on the form that the police questioning eventually took, the court was able to ignore the investigatory behaviour that led to the commencement of the questioning in the first place, which was most likely an instance of racial profiling. The Canadian courts’ reluctance to acknowledge the fact that police officers engage in racial profiling takes on enhanced significance when it is acknowledged that the practice occurs across the country, and is applied to a wide variety of ethnic groups. Although the study of racial profiling in the United States has identified African Americans as the primary targets of the practice, the problem has a broader range of victims in Canada, which extends the issue well beyond the confines of greater Toronto and other major urban centres such as Montreal.244 According 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 respect to the treatment of black people in Nova Scotia and Quebec, the treatment of Asians and South Asians in British Columbia, and the treatment of aboriginal people throughout the country.”245 With 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 of assimilation or control ... Policing has played a variety of roles in the processes of dispossession, 240 Ibid atpara. 53. 241 Ibid at para. 54. 242 Ibid. at para. 58. 243 Ibid 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). 245 Scot Wortley, “Hidden Intersections: Research on Race, Crime, and Criminal Justice in Canada” (2003) 35 Can. Ethnic Stud. 99 at 100. 59 displacement, and resistance that stem from this policy. Through activities such as raiding longhouses, suppressing potlatch ceremonies, enforcing residential school policies, and attempting to contain organized resistance, the Canadian state has consistently deployed policing in attempts to repress Aboriginal peoples’ aspirations, cultures and rights.246 The historical practice of differentially policing Aboriginals has in modern times led directly to allegations that the police routinely profile native Canadians on the basis of their race. As MacAlister indicates, “[i]n Canada, the police in the prairies have periodically come under fire for alleged racism against Aboriginals The practice of racial profiling is not limited to the stopping and searching of racialized individuals while they are present in certain neighbourhoods and areas. In reality, the practice encroaches 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 the community is not a controversial claim but has been illustrated dramatically in recent years by the issue of profiling — whether in the fonn of local police forces engaging in racial profiling when stopping vehicles for inspection, or decisions made at borders and airports to detain members of particular ethnic and religious groups for secondary searches.248 Tanovich similarly reports that “[r]acialized stereotypes influence not only who is stopped and questioned but also who is searched, arrested, subjected to police force, or ultimately detained in custody. In some cases the stereotype will lead police to overreact because they have perceived the situation to be far more dangerous than it really is.”249 In the result, racial profiling occurs throughout all regions of Canada, it affects a wide spectrum of ethnic and racial groups, and it occurs in a wide variety of circumstances. The practice therefore significantly deepens the differential impact that the institution of Canadian policing has on society’s racially, economically and socially marginalized communities and individuals. These realities must be taken into account by the Supreme Court of Canada when it is 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 Canada The 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-day 246 Toni Williams & Kim Murray, “Shifting the deckchairs on the Titanic once more: A plea for redundancy in the govemance 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 at 173. 247 MacAlister, supra note 174, at 172. 248 Lome 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. 249 Tanovich, supra note 224, at 24-25. 60 poling activities occur, the frequency with which individual officers engage in unauthorized or unlawful, the general institutional resistance to court rulings that solidify core legal rights at the expense of police powers, and the willingness with which police lie to cover-up investigatory misconduct, it becomes apparent that the Charter right of individuals who come to the attention of the police are in a position of relative peril. This reality is significantly exacerbated by the fact that the entirety of the policing function is disproportionately applied to the socially, racially and economically marginalized segments of Canadian society. As Dianne Martin argued, “[m]ost cases in the criminal justice system involve targeted, racialized, marginalized people who are known to each other, and known to the system, and most of these cases are resolved through plea negotiations. It is fewer than 10-20 per cent of all charges that actually proceed to a contested trial, and of that percentage, a much smaller number involve cases where factual guilt is at issue.”250 As a result, the core legal rights of the individuals who are most likely to invoke them are disproportionately vulnerable to potential violation. This ought to be of great concern to the Supreme Court as these relatively powerless individuals are not in a realistic position to vigorously defend the systematic violation of their rights. 2.6. Conclusion to Chapter 2 Proponents of the Canadian criminal justice process often assume that it provides equal justice for all. Many consider that the Charter works to ensure that differential applications of the system are minimized to the greatest extent possible, and that it has all but limited overt biases and prejudices over the course of the past 25 years. The system’s most ardent critics often target the Charter as the root cause of the system’s inability to reduce crime sufficiently or punish offenders adequately. In reality, however, neither of these positions is entirely accurate. First, the criminal justice system is neither constructed solely to decrease crime, nor to harshly punish criminals. Instead, it serves as a mechanism though which maintenance of the social status quo is sought, and to a large extent obtained. This function, which was first identified and critiqued by Marx and Marxist scholars, was at the root of the criminal justice system that Canada inherited from the United Kingdom in the 1700s. In modern times, Canada’s system is disproportionately applicable to the socially powerless, the racially marginalize and the economically disadvantaged. Furthermore, the institution of Canadian policing is characterized by features that 250 Dianne Martin, “Distorting the Prosecution Process: Informers, Mandatory Minimum Sentences, and Wrongful Convictions” (2001)39 Osgoode Hall L.J. 513 at 527. 61 seriously jeopardize the integrity of the core legal rights of individuals who are routinely subjected to investigations, interrogations and searches. These realities would seem to call for a broad interpretation and application of s. 24(2) in order 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 of repression, the Charter ‘s exclusionary mechanism currently acts to legitimize the disproportionality endemic in modern Canadian criminal justice. When critically assessed in light of the criminal justice system’s historical legacy, the Charter ‘s application in the criminal law context is less concerned with guaranteeing procedural rights for accused persons, and more concerned with ensuring that the system appears legitimate. On this point, Mandel concludes that: [t]he Supreme Court’s oracle-like pronouncements rendered a decade after the fact can have nothing to do with these concrete goals of procedural rights; in fact, they systematically defeat them. Their only conceivable raison-d’être is a legitimation one: to protect the reputation of the system by this ad hoc, post hoc purifjing mechanism, while at the same time giving the impression of a system concerned with these rights and interests by virtue of engaging in earnest but inconclusive debates about them.251 These “earnest” debates have the effect of shifting the focus away from the overall repressive nature of the system and onto to its supposed fairness and equality. Mandel argues that the Charter ‘s core legal rights are “[a] whole way of approving or disapproving of punishment in which the freedom of the judiciary is central. Since the rights are merely incidental to legitimation, they are symbolic, discretionary and conditional ... They are meant to protect the system not the public “. It is in this context, then, that the validity of the Supreme Court’s development of the Charter’s exclusionary mechanism must ultimately be judged. 251 Mandel, Legalization, supra note 99, at 203. 252 Ibid at 224. 62 Chapter 3. The Rise of Canada’s Exclusionary Rule Despite the subject matter with which the jurisprudence deals, and the vast amount of academic comment that it has generated, the Supreme Court of Canada’s interpretation and application of s. 24(2) of the Charter has remained relatively consistent since it was first introduced more than two decades ago. The Supreme Court’s treatment of s. 24(2) remains founded on its ruling in Therens, specifically set out in Collins, and ultimately clarified in Stiliman, even though the court has issued more than 150 rulings and heard more than 100 applications for leave to appeal involving the section since 1984253. An applicant seeking the exclusion of unconstitutionally obtained evidence under the Charter must inevitably rely upon the principles set out in these three cases. Therefore, if the decision-making process of the Supreme Court in this subject area is to be critically analyzed in a sufficient manner, these three cases must necessarily provide the basis for that analysis. However, in order to understand the full significance of these rulings, it is first necessary to place them into their proper historical context. This can be accomplished by briefly examining the origins of exclusion and the pre-Charter approach to illegally obtained evidence, and by outlining the constitutional drafting process that led s. 24(2)’s inclusion in the Charter. 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’s adjudicatory process in relation to s. 24(2), and to judge the validity of the Court’s development of 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 Canada Prior to the proclamation of s. 24(2), the means through which the state obtained evidence of criminal wrongdoing was essentially irrelevant to the issue of admissibility. However, the Supreme 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 the contentious issues surrounding various forms of the exclusionary rule. In the United States, those issues have been swirling since 1914, when that country’s Supreme Court issued its first major decision on exclusion, Weeks v. United States.254 In discussing the proper recourse for a violation of the Fourth Amendment,255 Day J. ruled: 253 As of the date of writing, Quicklaw reports that there are 159 Supreme Court judgments mentioning s. 24(2), and 119 applications for leave to appeal involving the section. 254 232 U.S. 383 (1914) [Weeks]. 255 U.S. Const. amend. IV. In its entirety, the Fourth Amendment reads: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no 63 [t]he tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused 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 the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.256 Day 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 no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.”257 The United States Supreme Court subsequently extrapolated upon Weeks in Silverthorne Lumber Co. v. United States,258 a case in which the federal government admitted that certain papers had been seized from the accused in a manner that constituted an “outrage”. The government nevertheless intended to copy the information contained in the illegally obtained documents, and to then use that information against the accused at his trial.259 In rejecting the validity of this intention, Holmes J. ruled: [t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely 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. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.26° Holmes J. ‘ s decision thereby rendered all evidence obtained in contravention of the protections set out in the U.S. Constitution automatically inadmissible in federal criminal trials. Two subsequent Supreme Court decisions rendered in the 1960s — Mapp v. Ohio26’ and Miranda v. Arizona262 — extended the rule of automatic exclusion to criminal proceedings commenced under state law as well. As a result, the exclusionary mechanism initially set out in Weeks continues to play a significantly determinative role in admissibility assessments throughout the entirety of the United States. warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 256 Weeks, supra note 253, at 392. 257 Ibid at 393. 258251 U.S. 385 (1920). 259 Ibid. at 391. 260 Ibid. at 392. 261 367 U.S. 643 (1961) [Mapp]. 262 384 U.S. 436 (1966) [Miranda]. 64 The U.S. Supreme Court’s automatic exclusionary rule has generated considerable controversy since its inception.263 Criticism of its rigidity eventually led the American judiciary to carve out three main exceptions to the general rule.264 First, according to Paul Marcus, the doctrine of harmless error asserts that “[i}f a violation has occurred under the Fourth, Fifth and Sixth 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 the evidence which should have been excluded is ‘harmless beyond a reasonable doubt.”265 Only when this threshold is not met will the evidence be excluded. Second, the impact of automatic exclusion can be limited if a specific exclusionary ruling is interpreted as having only a prospective effect, as opposed to having both prospective and retrospective application.266 Clearly, a ruling with retrospective application will have a far greater impact than one that is only permitted to impact upon future investigatory conduct. Third, the most significant — and perhaps the most heavily disputed — exception to the rule of automatic exclusion involves determining whether the illegal police conduct is excusable on the basis that the subject officers acted in good faith. The United States Supreme Court first formally recognized267 a good faith exception to Fourth Amendment violations in United States v. Leon.268 In that case, the police secured judicial authorization for a search warrant primarily by using information received from a confidential informant.269 Although the search warrant was eventually invalidated for lack of probable cause, it was facially valid at the time of its execution.270 In deciding that the evidence seized under the impugned warrant was nevertheless admissible at trial, the Supreme CQurt first reiterated the fact that the purpose of the suppression doctrine is to deter future police misconduct,27’and then observed that “[s]uppression of 263 See e.g. Lane V. Sunderland, “Liberals, Conservatives, and the Exclusionary Rule” (1980) 71 J. Crim. L. & Criminology 343 [Sunderland]. 264 Paul 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: A Study 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). 265 Ibid at 603. 266 Ibid at 604. 267 The issue of good faith and its relation to the suppression doctrine had long been debated in district and appellate courts 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. 268 468 U.S. 897 (1984) [Leon]. 269 Ibid at 901. 270 Ibid at 902-904. 2711bic1 at 916. 65 evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.”272 Speaking for the majority of the Supreme Court, White J. set out the substance of the good faith exception, ruling that the suppression of evidence obtained under the auspices of what is subsequently determined to be an invalid warrant does not advance the overarching purpose of the exclusionary rule provided that the officer’s reliance on the warrant was objectively reasonable.273 The majority added the caveat of objectivity to it reasonableness requirement in order to avoid countenancing police reliance on warrants that — despite being technically valid at the time of execution — were nevertheless obtained through police deception of the issuing magistrate, through the overt carelessness of the authorizing judge, or that were so facially deficient that any reasonably well-trained officer would not have relied on their validity.274 In justifying 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 signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe 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. When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure ofjudicial time.275 In applying the newly created exception to the facts of the case, the majority ruled that although the warrant had been issued improperly, the police had not engaged in misconduct in preparing their affidavit in support of the warrant and that as such, their subsequent reliance on the document in the execution of the search was objectively reasonable and thus in good faith.276 The majority’s good faith exception received trenchant criticism from the academic community in the United States.277 Scholars commonly challenged the new rule’s validity on the basis that it effectively robbed the Fourth Amendment of its practical effect. In refuting the Supreme Court’s argument that suppression should only be invoked if it advances the cause of deterrence, Donald Dripps contends that: [tb a significant degree, the severity of the sanction expresses the importance of the violated norm. Even if the sanction does not deter, the refusal to apply it or anything else expresses the judgment that the underlying norm is of little importance. Leon teaches that Fourth Amendment 272 Ibid at 918. 273 Ibid at 922. 274 Ibid at 923. 275 Ibid at 924. 276 Ibid at 926. 277 See David Clark Esseks, “Errors in Good Faith: The Leon Exception Six Years Later” (1990) 89 Mich. L. Rev. 625 at 625-626 [Esseks]. 66 violations do not matter. Such an evaluation betrays the fundamental principle of constitutionalism, which is after all that the Constitution states the law.278 Despite the arguments against good faith, many levels of court in the United States continue to apply the exception in dismissing suppression applications in Fourth Amendment cases.279 Thus, the good faith exception to the automatic exclusionary rule for all unconstitutionally obtained evidence continues to influence the outcome of criminal trials throughout the country. These exceptions to the general rule of automatic exclusion arose in the United States primarily because the U.S. Supreme Court adopted the deterrence rationale to justify the exclusion of illegally obtained evidence. The acceptance of this new ideological outlook represented 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 excluding the ill-gotten gains of unconstitutional acts is to deter such acts in the future. If the evidence will be excluded, there is nothing to be gained on the part of state agents in disregarding the Constitution hence there will be no incentive to do so. Presumably this will reduce the incidence of constitutional violations.”281 However, the deterrent effect of exclusion has never been conclusively proven. As Paciocco notes, “[ut is difficult if not impossible to prove that the exclusion of evidence actually deters unconstitutional acts. While deterrence cannot be substantiated, the costs of exclusion can be graphically demonstrated through anecdotal evidence.”282 The less likely it is that exclusion can be proved to deter future violations in particular circumstances, the less likely it is that it will be ordered. When this rationale is applied, then, the exclusion of illegally obtained will be rare. The adoption of the deterrence rationale therefore represents the U.S. Supreme Court’s clear intention to scale back the exclusionary rule’s practical impact.283 In pre-Charter Canada, the Supreme Court ensured that the U.S. position on exclusion did not encroach into the Canadian jurisprudence. In R. v. Wray,284 a majority of the Court ruled that judges lacked the discretion to exclude otherwise reliable evidence from a criminal trial 278 Donald Dripps, “Living with Leon” (1986) 95 Yale L.J. 906 at 936. 279 Esseks, supra note 276, at 633. 280 Paciocco, “Judicial Repeal”, supra note 59, at 331. 281 Ibid at 332 [footnotes omitted]. 282 Ibid at 336 [footnotes omitted]. 283 Ibid [footnotes omitted]. In Paciocco’s words, “[t]he weaknesses of the rationale have been exploited to create new exceptions to the exclusionary rule and to confirm, develop and extend old exceptions. It is difficult to resist the conclusion 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.]. 67 simply because it had been obtained illegally or improperly, or even in a way that brought the administration ofjustice into disrepute.285 In so ruling, Martland J. relied on the English decision of Kuruma v. The Queen,286 in which the U.K. House of Lords determined that “[tjhe test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.”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 substantial probative value may operate unfortunately for the accused, but not unfairly. It is only the allowance 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 can be said to operate unfairly.288 Although the facts in Wray involved an involuntary confession rather than evidence received through a specific rights violation, the ruling set the standard for subsequent judicial treatment of unconstitutionally obtained evidence under the common law. The Supreme Court’s decision in R. v. Hogan289 solidified the notion that the rule from Kuruma was applicable to rights violations occurring in Canada as the Court applied the position taken in Wray directly to adjudication under the Canadian Bill ofRights. In Hogan, the accused sought to quash his conviction on the basis that he was denied his right to counsel during the investigation 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 all respect for those who may have a different opinion, I cannot agree that, wherever there has been a breach of one of the provisions of that Bill, it justifies the adoption of the rule of “absolute exclusion” on the American model which is in derogation of the common law rule long accepted in this country.29° The Supreme Court was satisfied that the quasi-constitutional Bill of Rights did not alter the common 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 improperly obtained evidence rests primarily on the relevancy of that evidence subject only to the discretion of the trial judge to exclude it on the ground of unfairness as that word was interpreted in this Court in [Wray] ,,291 Therefore, whenever evidence was deemed sufficiently reliable and probative, it 285 See McLellan & Elman, supra note 51, at 225. 286 [1955] A.C. 197 [Kuruma]. 2871b1c1 at 203. 288 Wray, supra note 283, at 293. 289 [1975] 2 S.C.R. 574, 62 D.L.R. (3d) 193 [Hogan cited to S.C.R.]. 290 Ibid at 597-598. 291 Ibid. at 582. 68 would continue to be admissible regardless of whether the accused’s rights were violated during the investigatory process. The Supreme Court’s pre-Charter reliance on Kuruma for its formal position on exclusion is somewhat concerning. That case came before the House of Lords by way of appeal against a decision rendered by the Court of Appeal for Eastern Africa in 1954. The accused — a black African — had been convicted at trial of unlawfully possessing two rounds of ammunition in contravention of Kenyan law, and had been sentenced to death.292 Previously “a man of good character”,293 he had come to the attention of authorities on the date of the offence in highly suspect 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 there was a police roadblock at which he was likely to be searched. He selected this path even though he could easily have taken another route to reach his home, thereby avoiding the roadblock.294 Upon reaching the roadblock, the accused was stopped as expected, and the validity of his papers was checked. Despite his documentation being in order, the accused was subjected to a pat down search, which the investigating officer later testified raised the suspicion that the accused was in possession of ammunition and a pocketknife.295 After this initial search, the accused was taken to a police enclosure where two officers performed a more extensive search. This search, which involved removing the accused’s shorts, eventually located the incriminating evidence.296 The officers were purportedly acting under the authority of a Kenyan law providing police with significant stop and search powers. The applicable regulation provided that “[amy police officer of or above the rank of assistant inspector with or without assistance and using force if necessary ... may stop and search ... any individual whether in a public place or not if he suspects that any evidence of the commission of an offence against this regulation is likely to be found on such ... individual and he may seize any evidence so found.”297 Despite the obviously wide ambit of otherwise arbitrary searches legitimized by this regulation, the investigating officers nevertheless overstepped their authority. At the time the search was performed, neither officer occupied a position at or above the rank of assistant inspector.298 The law did therefore not authorize the warrantless search of the accused. The accused impugned the search as illegal, 292 Kuruma, supra note 285, at 198. 293 Ibid 294 Ibid 2951bic1 at 198-199. 2961bic1 at 199. 297 Ibid at 198. 298 Ibid at 199. 69 and argued that the evidence obtained through that illegal search ought to have been inadmissible at his trial.299 Kuruma denied that he had been in possession of the ammunition or the pocketknife, suggesting instead that the investigating officers had planted any such evidence upon his person.30° Despite the suspicious circumstances and serious consequences of this case — or perhaps even because of them — the House of Lords was content to rely on the rule that all reliable evidence was admissible at a criminal trial regardless of how it had been obtained.30’In coming to this conclusion, their Lordships referred to an earlier English decision in which the presiding judge stated the rule regarding admissibility in the following dubious terms: “[ut matters not how you get it; if you steal it even, it would be admissible.”302 Even using this wide statement of automatic admissibility of reliable evidence, the facts in Kuruma could easily have been interpreted as calling for the exclusion of the ammunition on the basis of unreliability. Though the accused argued that he did not ever possess the evidence, the courts simply preferred the investigating officer’s testimony on this point. Their conclusion in this regard appears based simply on the fact that none of the investigating officers officially carried the same type of ammunition. 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 the investigating officer’s testimony alone that it opted not to call the two other police officers and one civilian who allegedly witnessed the fruitful outcome of the search.303 This evidentiary lapse warranted nothing more than a mild reprimand from the House of Lords: “[t]heir Lordships think it was most unfortunate, considering the grave character of the offence charged, which carries a capital penalty, that these important witnesses were not called by the prosecution: it was not suggested that they were not available.”304 The rationale underlying the ruling in Kuruma seems highly suspicious. A young African male worker with no prior history of criminal activity is stopped at police roadblock of which he is well aware. Regardless of the fact that his papers are in order, he is searched — illegally — and evidence of a capital offence is uncovered. Despite the fact that the Crown is aware that the police officers were acting beyond the scope of their authority when conducting the search, and 299 Ibid 300 Ibid at 202. 301 Ibid at 203. 302 Ibid SeeR. v. Leatham (1861), 8 Cox C.C. 498. Ibid at 202. Ibid 70 that the accused denies possession of the evidence, it elects not to call several available witnesses to corroborate its primary evidence. Nevertheless, the House of Lords was ultimately willing to deem the impugned evidence reliable and therefore admissible regardless of the fact that it was illegally obtained. More troubling still, a majority of the Supreme Court of Canada was willing to incorporate this dubious precedent into the Canadian jurisprudence in Wray with little discussion 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 justify an excessively narrow interpretation of a judge’s residual discretion to exclude evidence that operated unfairly against the accused.306 Martland J. appears to have reasoned that if such discretion could not have been justifiably exercised in Kuruma, then the scope of that residual discretion must be very narrow indeed. In this sense, the Supreme Court’s pre-Charter position on exclusion was explicitly founded upon the judicial desire to avoid addressing the potentially problematic social-structural circumstances that are often directly related to the issue of criminal investigations. 3.2. Creating s. 24(2): The language of a political compromise The Supreme Court’s pre-Charter position on the admissibility of illegally obtained evidence engendered substantial controversy prior to 1982, and was the focal point of the political disagreements that arose during the constitutional drafting process, at least insofar as those disagreements pertained to the potential remedies to be included in the document.307 This controversy ultimately led the framers of the newly patriated constitution to explicitly include an exclusionary mechanism in the Charter ‘s enforcement section. Thus, the highly politicized constitutional drafting process resulted in the striking of a “compromise” between the Canadian common 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 intermediate position regarding the exclusion of unconstitutionally obtained evidence, rejecting as it did both the American rule of automatic suppression and the common law rule deeming all relevant 305 Wray, supra note 283, at 293. 306IbicL at 295. 307 See McLellan & Elman, supra note 51, at 206-20 8. 308 Collins, supra note 52. 71 evidence admissible, irrespective of how it was secured by the state.309 However, suggesting that s. 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 of which was almost entirely dictated by political disagreements between various interest groups and political parties.31°The primary point of contention concerned whether the Charter would explicitly provide for the exclusion of unconstitutionally obtained evidence, or whether it would simply preserve the common law status quo. One the one hand, organizations such as the Canadian Civil Liberties Association sought to ensure that the Charter would contain an effective remedial section lest it rights be reduced to mere symbolism. As Walter Tarnopoisky argued, “[o]rdinarily one would expect that when a Bill of Rights sets out certain rights and freedoms, that a remedy would be presumed. In other words, our Courts would not be moved to assert there is a right unless there is a remedy, but ... you will note that the majority of our Supreme Court has not followed that kind of logical conclusion.”31’On the other hand, groups such as the Canadian Association of the Chiefs of Police opposed the entrenchment of the Charter on the grounds that it would unduly limit the fairness and effectiveness of police investigations into criminal behaviour.312 The inherently political nature of the s. 24(2) drafting process inevitably resulted in the promulgation of a remedial section composed of a number of extremely vague concepts couched in 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 in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration ofjustice into disrepute.313 As is plain from even a cursory reading of the section, its vague terminology does not specifically dictate when evidence is to be excluded from a criminal trial. Simply stated, the section requires extensive judicial interpretation before it can be applied by any court. The Supreme Court’s various attempts at articulating the precise nature of the political compromise 3091bic1 at para. 29, 310 In 1980-81, groups including the Canadian Civil Liberties Association, the Canadian Jewish Congress, the Canadian Bar Association, the Canadian Association of Chiefs of Police, the Canadian Association of Crown Counsels, the Progressive Conservative Party of Canada, and the New Democratic Party of Canada all made oral submissions regarding the eventual form of s. 24(2) to the Special Joint Committee of the House of Commons and Senate 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 [Joint Committee Proceedings]. 312 Mandel, Legalization, supra note 99, at 182. 313 Charter, supra note 36, s. 24(2). 72 that s. 24(2) represents have created the bulk of the controversy associated with exclusionary mechanism. As Peter Hogg has observed, “[gjiven the vague language of s. 24(2), it is not surprising that the Supreme Court of Canada has had difficulty in developing a consistent body ofjurisprudence.”314 3.3. The Supreme Court and Canada’s exclusionary rule The language used to enshrine the remedy contained in s. 24(2) of the Charter is imprecise, and therefore open to differential judicial interpretation. Rather than there existing only one clearly correct method of excluding evidence obtained through the breach of a Charter right, the particular words selected by the framers in setting out the section renders its interpretation an inexact science. In reality, there are as many possible interpretations for s. 24(2) as there are persons interested in interpreting it. However, the Supreme Court of Canada has settled on a particular reading of the section’s language, and has held firmly to that reading for almost a quarter of a century. In essence, the Court’s current approach to the exclusion of unconstitutionally obtained evidence can be understood by an examination of the Therens/Collins/Stiliman regime. It is nevertheless instructive to also briefly examine the route an accused person must taken when applying for the exclusion of evidence under s. 24(2), as well as the alternative route to exclusion under s. 24(1). These explanations will provide additional context for the Supreme Court’s authoritative trilogy of decisions pertaining to s. 24(2). 3.3.1. The route to the exclusionary remedy The 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 his or her intention to raise Charter arguments in an effort to impugn the conduct of the police in the investigation process.315 Once this notice is filed with the courts and properly served upon the Crown, the accused must prove on a balance of probabilities that his or her rights have been violated.316 If these substantial hurdles are cleared, the accused must then prove on a balance of probabilities that the remedy he or she seeks is warranted in the circumstances.317 Given this procedure, if the accused’s arguments regarding the appropriateness of exclusion fail, his or her 314Hogg Constitutional Law, supra note 148, at 959. 315 R. 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. 316 Collins, supra note 52, at para. 21. 317 See e.g. Ibici; and R. v. Iraheta, [2007] O.J. No. 2205. 73 arguments pertaining to the substantive rights violation will have only a negligible impact on the outcome of the trial, if any impact at all. As a result, s. 24(2) takes on a hugely significant role in relation to the practical impact of the core legal rights. It follows from this that a restrictive interpretation of s. 24(2) will concomitantly reduce the effectiveness of the Charter ‘s core legal rights, rendering them merely incidental to the adjudication of criminal offences. For example, the courts have created a large body of case law pertaining to an individual’s right to be free from unreasonable search and seizure under s. 8. However, if no available remedy is capable of sufficiently dealing with violations of s. 8, it becomes impossible to vest that right with meaning insofar as it purportedly protects a person subject to the state’s powers of criminal investigation. If in most cases, s. 8 violations have no effect on the outcome of criminal trials, it becomes arguable that the section has little or no practical meaning whatsoever. It cannot even be realistically said to have a deterrent impact as, if violations do not result in exclusion, there is no need for police to bring their behaviour into line with s. 8 requirements. This suggests that if rights are to be taken seriously in even the most minimal sense, judicial interpretation of constitutional remedies ought to be broad and expansive rather than narrow and restrictive. Without a remedy appropriately constructed to properly and adequately compensate the victim of a Charter violation, the substantive right becomes nothing more than a procedural guideline for police, one that can be ignored whenever the subjectively apprehended circumstances dictate. In this sense, the adjudication of s. 24(2) touches upon the Charter ‘s core legal rights, and its interpretation and application will ultimately determine the practical impact of those rights. 3.3.2. Section 24(1): Canada’s “other” exclusionary mechanism The remedial mechanism contained in s. 24(1) is couched in broad language, and is thus potentially 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 or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.318 The Supreme Court has observed that the specific language of the section has the potential to render the remedy extremely powerful. In R. v. Mills,319 Lamer J. stated in dissent that when interpreting s. 24(1), judges “[sjhould not retreat from the development of imaginative and 318 Charter, supra note 36, s. 24(1). 319 [19861 1 S.C.R. 863, 29 D.L.R. (4th) 161 [Mills cited to S.C.R.]. 74 innovative remedies when just and appropriate.”320 In the same case, Mclntrye J. observed for the majority that “[i]t is to be hoped that trial judges will devise, as the circumstances arise, imaginative remedies to serve the needs of individual cases.”32’ Despite the potential for broad judicial interpretation of the remedies available under s. 24(1), the Supreme Court concluded that a judge’s authority to exclude unconstitutionally obtained evidence is derived solely from s. 24(2). In Therens322 Le Dam J. ruled that if exclusion was possible under both subsections “s. 24(2) would become a dead letter. The framers of the Charter could not have intended that the explicit and deliberately adopted limitation in s. 24(2) on the power to exclude evidence because of an infringement or a denial of a guaranteed right or freedom should be undermined or circumvented in such a manner.”323 This seems to be an exceedingly 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, there would be no need to resort to s. 24(2), it being impossible to imagine a situation where exclusion was neither appropriate nor just, yet still necessary to prevent disrepute from flowing to the administration ofjustice. Despite this explicit ruling, several more recent cases have indicated that there may in fact be a limited authority for the exclusion of evidence under s. 24(1), provided that exclusion is necessary to ensure the fairness of the trial process.324 In essence, this limited authority is restricted to evidence obtained either unfairly or illegally, but not in contravention of the Charter. In R. v. Harrer,325 the Supreme Court of Canada dealt with the admissibility of evidence collected by United States law enforcement officials against a Canadian accused while she was in custody in the U.S. The accused challenged the admissibility of the evidence as the American law enforcement officials employed investigatory techniques that would have rendered the evidence inadmissible had Canadian police utilized the same methods.326 Speaking for the majority, La Forest J. stated: [t]he appellant does not complain about any improper police action in Canada. Consequently, the only grounds that may be available to the appellant, as her counsel recognized during the oral hearing, is that the admission of the evidence would violate the appellant’s liberty interests in a 320 Ibid at para. 44. 321 Ibid. at para. 266. 322 Theren.s, supra note 97. 323 Ibid at para. 60. 324 Stuart, Charter Justice, supra note 52, at 456. i25 [19951 3 S.C.R. 562, 128 D.L.R. (4th) 98 [Harrer cited to S.C.R.J. 326 Ibid atpara. 1. 75 manner that is not in accordance with the principles of fundamental justice under s. 7 of the Charter, or would violate the guarantee of a fair trial under s. 11(d) of the Charter.327 La Forest J. further observed that courts should not assume the evidence would render a trial unfair simply because it was obtained by investigatory techniques that would have violated the Charter had they been employed by agents of the Canadian state,328 and acknowledged that Canada lacked the legal authority to impose its procedural requirements on foreign jurisdictions.329 The Justice ultimately concluded that the admission of the statements made by the accused to the U.S. officials did not render her trial unfair, and thus need not have been excluded from the original proceedings.33°La Forest J. went on to observe in obiter that if the statements had in fact affected the fairness of the trial, he would have had “no difficulty” in rejecting the evidence, not under ss. 24(1) or 24(2), but rather “[o]n the basis of the trial judge’s duty, now constitutionalized by the enshrinement of a fair trial in the Charter, to exercise properly his or her judicial discretion to exclude evidence that would result in an unfair trial.”33’ Thus, the Justice would have excluded the evidence under the auspices of s. 11(d) of the Charter, which, in La Forest J. ‘ s view, has transformed the judge’s common law discretionary power to exclude evidence that would render a trial unfair into “[a] constitutional imperative.”332 In a concurring judgment, McLachlin J. (as she then was) agreed with La Forest J.’s contention that evidence obtained in a manner that did not technically run afoul of the Charter could 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 have resorted 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 the right to a fair trial may be excluded under s. 24(1), which provides for “such remedy as the court considers appropriate and just in the circumstances” for Charter breaches. Section 24(1) applies to prospective breaches, although its wording refers to “infringe” and “deny” in the past tense.. . It follows that s. 24(1) permits a court to exclude evidence which has not been obtained in violation of 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 which would render the trial unfair either at common law or under s. 24(1) of the Charter. The debate 327 Ibid atpara. 13. 328 Ibid atpara. 14. 329 Ibid atpara. 15. Ibid at paras. 19-20. 331 Ibid atpara. 21. 332 Ibid at para. 24. 76 thus shifts to the third premise of the appellant’s argument -- that to admit Harrer’s second statement would render the trial unfair.333 In McLachlin J.’s view, then, the residual authority to exclude evidence in cases where its admission would not specifically trigger s. 24(2) but would nonetheless negatively impact upon the fairness of a trial is derived from s. 24(1) rather than solely from any of the Charter ‘s substantive rights sections. McLachlin J.’s opinion in this regard was subsequently endorsed by a majority of the Supreme Court in R. v. White.334 However, it is important to note that the Court has not yet seen fit to extend this residual power to cases where an application to exclude the same evidence under s. 24(2) has failed. The power remains strictly limited to situations in which the regular exclusionary mechanism is inapplicable because no Charter violation has been established. Thus, the exclusion of unconstitutionally obtained evidence remains within the sole purview 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 obtained evidence is to be accomplished primarily by way of application pursuant to s. 24(2) of the Charter. Given the significant role played by s. 24(2) in the overall effectiveness of the Charter ‘s core legal rights, it is perhaps unsurprising that the section has generated an enormous body of judicial treatment. It did not take long for the inevitable issues surrounding the interpretation and application of the relatively vague evidential exclusionary mechanism to reach the Supreme Court of Canada. The national high court made its first significant pronouncement on the issue only three years after the Charter came into force. The stream of cases seeking to further clarify the Supreme Court’s various interpretations of the remedial section has continued with only minimal abatement up to the present day. As will be seen, despite the amount of judicial treatment given to s. 24(2), the Supreme Court’s reconsiderations of the section have remained 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 considerable disagreement that arose between provincial appellate courts regarding the proper role of the new exclusionary 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 to IbicL 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. 77 ensure that exclusion would occur only in rare instances,336 the Ontario Court of Appeal sought to provide the foundation for a broad application of s. 24(2) as a remedial mechanism.337 The controversy among provincial appellate courts was soon resolved by the Supreme Court in favor of the position then dominant in Ontario,338 thereby clearing the way for s. 24(2)’s interpretational controversy to be dealt with by the Supreme Court. 3.4.1. R. v. Therens The decision in Therens339 represented the Supreme Court of Canada’s first attempt at creating an overarching methodology for the application of s. 24(2). The case originated out of a traffic accident involving a motor vehicle operated by the accused. When the investigating officer arrived on the scene, he formed the suspicion that the accused had consumed alcohol prior to operating his vehicle and becoming involved in the accident. Having reasonable and probable grounds to do so, the officer issued a demand under s. 235(l)° [now s. 254(3)] of the Criminal Code34’ instructing the accused to accompany him to a police station to provide two breath samples to a qualified technician.342 The accused complied with the demand, accompanied the officer to the police station and provided the necessary samples. He was then charged with an offence under s. 236(l) [now s. 253(b)]. At no time during this preliminary investigation did the officer arrest the accused or inform him of his Charter right to retain and instruct counsel.344 Although this fact scenario is quite common, both the officer’s investigation of the accused and the eventual judicial determination of the case were complicated by the relative novelty of Charter litigation at the time. When Therens was heard, the Supreme Court had yet to establish 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 of 336 Ibid. at 477. Ibid at 478. 338 Ibid. at480. Therens, supra note 97. Criminal Code, R.S.C. 1970, c. C-34 at s. 235(1) [Criminal Code 1970]. 341 Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code]. 342 In its entirety, s. 23 5(1) read: Where a peace officer on reasonable and probable grounds believes that a person is committing, or at any time within the preceding two hours has committed, an offence under section 234 or 236, he may, by demand made to that person forthwith or as soon as practicable, require him to provide then or as soon thereafter as is practicable such samples of his breath as in the opinion of a qualified technician referred to in subsection 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 alcohol in such quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 milliliters of blood”. Therens, supra note 97, at para. 30. 78 Rights,345 the advent of s. 10(b) presented the Court with an opportunity to establish a fresh approach to the concept. Thus, the substantial body of pre-Charter case law pertaining to the right to counsel did little to clarify the issue. Moreover, the Supreme Court had yet to specifically analyze the treatment of illegally obtained evidence under s. 24(2). Therens thus required consideration of several novel legal issues, which remained consistent before both the Court of Appeal and the Supreme Court of Canada. The Supreme Court’s eventual determination of these issues was somewhat complicated by the unusual split amongst the eight justices346 who participated in the decision. The first issue dealt with by the Court was whether there had been an infringement of the accused’s right to counsel. The main point of contention here involved the triggering mechanism contained within 10(b).347 As is clear from the express wording of that section, the Charter limits the application of s. 10(b) to individuals who are either under arrest or are being detained by an agent of the state. Although situations involving an “arrest” will be relatively straightforward, the concept of “detention” is far more ambiguous, as can be seen from the convoluted judicial treatment of the term during the pre-Charter era.348 In defining “detention” as it is used in the context of s. 10(b), the Court unanimously held that the investigating officer had detained the accused by issuing the demand under s. 235(1). Furthermore, the Court ruled that both the officer’s failure to provide the accused with an opportunity to contact counsel, and his failure to inform the accused of that right, constituted violations of s. 10(b).350 The Supreme Court was thus unanimous in determining that the accused’s s. 10(b) rights had been engaged and violated.35’ The panel then turned its collective attention to the remedies available under s. 24 of the Charter. Consideration of this section raised two issues. First, the Court disagreed with both the S.C. 1960, c. 44 [Bill ofRights]. 346 Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dam JJ. took part in the written judgment. 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) to retain 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, holding that 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’ opinions were split into two equal groups on the issue of exactly how the violation occurred. See ibid., paras. 6-7, 49-50, 53. 351 Ibid. 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 to the reasons why it was not triggered. See per Dickson C.J. at para. 1, per Beetz, Estey, Chouinard, Wilson and Lamer JJ. at para. 10, per McIntyre and Le Dam JJ. at para. 56. 79 trial court and the Court of Appeal,352 and ruled that there is no discretion to exclude evidence under s. 24(1) as a remedy “appropriate and just in the circumstances.”353 This ruling created a second interpretational issue related to s. 24: if the exclusion of illegally obtained evidence is limited to s. 24(2), in what circumstances does that subsection operate? The Court was therefore required to give specific meaning to the broad language of s. 24(2), and to then apply that language to the facts before them. The panel ultimately split 6-2 on the issue, with the majority ruling that the evidence had been properly excluded at trial. The dissent would have allowed the evidence 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 by Dickson C.J., Beetz, Chouinard, Wilson and Lamer JJ. However, as Estey J. agreed with the bulk of Le Dam J.’s dissenting reasons354 insofar as they pertained to the interpretation of s. 24(2), the majority reasons dealt with the issue in a relatively brief fashion. As will be seen, although the majority split with the dissenting Justices primarily on the application of s. 24(2) to the facts of the 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 the impugned 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 facts and circumstances in this appeal would be to invite police officers to disregard Charter rights of the citizen and to do so with an assurance of impunity.”355 Estey J. was therefore primarily concerned with the severity of the rights violation and with the desirability of ensuring that future 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. This assertion is evident from the following passage: “[tlhe violation by the police authority of a fundamental Charter right, which transpired here, will render this evidence inadmissible. Admitting this evidence under these circumstances would clearly ‘bring the administration of justice into disrepute’ ,356 This observation could either have been a benign reference to the fact that all Charter rights are important, or it could represent any early manifestation of the Supreme 352 Ibid 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, see para. 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]. 80 Court’s creation of a hierarchy of core legal rights in which s. 10(b) occupies a position of paramount importance. The latter scenario is problematic as Estey J.’s reasons contain no explicit explanation as to why s. 10(b) violations ought to be treated more seriously than violation of other, apparently less fundamental Charter rights. As the later Supreme Court jurisprudence on s. 24(2) would soon demonstrate, there would indeed come to be a hierarchy of core 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 of Le Dam J., with whom McIntyre J. concurred. Although Le Dam J. dissented on the application of s. 24(2) to the specific facts of the case, the majority of the Justices agreed with his interpretation of the exclusionary mechanism. Only Dickson C.J. and Lamer J. specifically disagreed with Le Dam J.’s discussion of s. 24(2)’s language.357 Thus, the Supreme Court of Canada 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 with the section’s triggering mechanism.358 The language of the section stipulates that before exclusion can be contemplated, the applicant must demonstrate that the impugned evidence was obtained “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 evidence was obtained, holding that it would be sufficient if the violation simply occurred prior to the evidence 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 the temporal link requirement articulated by Le Dam J. into the s. 24(2) jurisprudence.360 In that case, Dickson C.J. rejected the argument that a strict causal connection between the rights violation and the actual securing of the evidence was necessary, deciding instead that all that was required 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 Charter violation and the discovery of evidence. Requiring a causal link will tend to distort the analysis of the conduct that led to the discovery of evidence. The inquiry will tend to focus narrowly on the actions most directly responsible for the discovery of evidence rather than on the entire course of Ibid , see per Dickson C.J. at para. 2, and per Lamer. J. at para. 19. 358 Ibid. atpara. 61. Ibid. at para. 62. On the issue of temporal connection, Estey 3. stated [at para. 12], “I recognize, however, that in the case of derivative evidence, which is not what is in issue here, some consideration may have to be given in particular 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.]. 81 events leading to its discovery. This will almost inevitably lead to an intellectual endeavour essentially amounting to “splitting hairs” between conduct that violated the Charter and that which did not.36’ Dickson C.J. thus concluded that provided that the temporal connection between the violation and the taking of the evidence was not “too remote”, s. 24(2) would be triggered and the evidence would be vulnerable to potential exclusion. The exact details of the temporal connection were to be analyzed on a case-by-case basis.362 Returning to the decision in Therens, Le Dam j.’5 judgment moved on from the temporal link issue to consider the meaning of the word “disrepute”, deciding first that other expressions or tests should not be substituted for the express wording of s. 24(2).363 The Justice then provided the 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 confidence in the administration ofjustice, as that may be affected by the violation of constitutional rights and freedoms. There is clearly, of course, by implication, the other value which must be taken into consideration in the application of s. 24(2) -- that is, the availability of otherwise admissible evidence for the ascertainment of truth in the judicial process, particularly in the administration of the criminal law.364 In Le Dam J.’5 opinion, then, the primary purpose of s. 24(2) is to protect the administration of justice from the disrepute that may flow from a Charter violation. The Justice also acknowledged that use of the exclusionary mechanism to achieve this purpose must be considered in light of the inherent value in allowing the Crown to use all relevant and probative evidence to determine the truth. Le Dam J. ultimately ruled that “[t]he issue under s. 24(2) is the circumstances in which [the truth finding function] must yield to the protection and enforcement of constitutional rights and freedoms by what may be in a particular case the only remedy.”365 Based on this articulation of s. 24(2)’s overarching purpose, Le Dam J. then set out what was intended to be an instructive, non-exhaustive list of the circumstances and factors that must be considered when applying the section to actual fact scenarios. In relation to s. 8 violations, Le Dam J. established “two principal considerations”: the seriousness of the violation and the seriousness of the offence. The Justice stated that the former criteria was to be assessed by determining whether the violation was committed in good faith, inadvertent, or merely technical 361 Ibid. at para. 40. 362 Ibid at para. 46. 363 In Rothman v. The Queen, [1981] 1 S.C.R. 640, 121 D.L.R. (3d) 578, Lamer J. referred to the “community shock” test in his discussion of then s. 178.16 of the Criminal Code. That section allowed a judge to reject evidence derived from intercepted communications if the admission of that evidence “would bring the administration of justice into disrepute”. Lamer 3. held that such disrepute would flow from police conduct that shocked the community. 364 Therens, supra note 97, at para. 71. 365 Ibid. atpara. 71. 82 in nature, or whether it was deliberate, willful or flagrant. Also relevant to the seriousness of the violation was whether it was committed out of urgency or necessity regarding the need to prevent the loss or destruction of the evidence.366 These factors were to be balanced with the seriousness of the charge in order to determine whether the admission of the evidence would result in disrepute.367 After establishing the basis on which disrepute could be ascertained, Le Dam J. expressly ruled that the necessary balancing of values under s. 24(2) ought to be adjusted in the context of a 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, a different 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 criminal law context must prima facie discredit the administration ofjustice.368 This opinion is striking similar to that of Estey J. in that it suggests that s. 10(b) is at the upper end of a implicit hierarchy of Charter rights. According to Le Dam J.’5, any violation of an accused person’s right to counsel automatically brings the administration ofjustice into disrepute unless 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 public opinion. The Justice made this observation largely because he felt that there was no reliable source from which to obtain accurate information regarding the public’s feelings about excluding a particular piece of evidence from a particular criminal trial.369 Rather, Le Dam J. ruled that the judiciary was in the best position to determine whether the admission of specific evidence would cause 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 opinion that the admission of certain evidence would bring the administration ofjustice into disrepute, he or she is under a duty to exclude that evidence.37’ The judgments authored by Estey J. and Le Dam J. ultimately part ways in their assessment of how to apply the s. 24(2) methodology to the specific facts of the case. Whereas Estey J. ruled the evidence had been properly excluded at trial, Le Dam J. decided that the 366 Ibid. atpara. 72. 367IbicL 3681bic1 atpara. 73. 369 Ibid at para. 74. Ibid. at para. 74. 371 Ibid. at para. 74. 83 evidence was admissible, primarily because of the confusion created by the Supreme Court’s pre-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 the respondent 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 the circumstances, as required by s. 24(2) of the Charter, that the admission of the evidence of the breathalyzer test in this particular case would bring the administration ofjustice into disrepute.372 Thus, despite establishing s. 10(b) as a right of crucial importance in the criminal law context, Le Dam J. was content to admit evidence obtained in flagrant violation of that right as probative of the accused’s guilt. It follows from his conclusion that in the Justice’s opinion, the seriousness of the Charter violation was significantly vitiated by the good faith of the officer involved. This vitiation was persuasive in spite of the fact that, in the Justice’s own words, exclusion of evidence may have been the “only remedy” available. The decision in Therens thus established two main points regarding the interpretation and application of s. 24(2): first, illegally obtained evidence can only be excluded under s. 24(2); and second, the section must be interpreted so that it strikes an appropriate balance between the protection of Charter rights and the truth-seeking function of the criminal trial process. It also made a number of less obvious points, including the implicit creation of a hierarchy of Charter rights in which s. 10(b) was placed in a position of prominence. The decision was somewhat complicated by the fact that only eight of the nine presiding Justices issued reasons and because the Justices who did render decisions split along different lines on different issues. Despite these complexities, the Supreme Court’s decision in Therens laid the foundation for the subsequent consideration of the test under s. 24(2). Moreover, the divisions and disagreements amongst the Justices shed light on the difficulties that would inevitably occur in future interpretations of the section. 3.4.2. R. v, Collins Two years after issuing its ruling in Therens, the Supreme Court rendered its decision in Collins,373 which is still widely considered the leading interpretation on s. 24(2). The accused in Collins impugned a search carried out against her by police officers engaged in surveillance of a known drug exchange site.375 When the officers arrested the accused’s husband after he left the 372 Ibid 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. 84 same location only moments earlier, they discovered narcotics on his person.376 The officers then returned to the location of the original surveillance and immediately proceeded to arrest the accused. At a “quickened pace”, the arresting officer approached the accused, informed her that he was a police officer, grabbed her by the throat to prevent her from swallowing any drugs that may have been in her mouth, and threw her to the ground. Once the accused was on the ground with the officer on top of her, a balloon containing cocaine was located in one of her hands.377 At trial, it was determined that the police had violated Collins’ rights under s. 8 of the Charter, primarily due to the fact that the officer did not have reasonable grounds to believe that she was in possession of narcotics prior to executing the search. However, the trial judge refused to exclude the evidence under s. 24(2) after determining that its admission at trial would not shock the community’s conscience.378 The Court of Appeal agreed with the trial judge’s conclusion regarding the appropriate treatment of the evidence, and therefore refused the accused’s appeal.379 On further appeal to the Supreme Court of Canada, Lamer J. agreed that the record contained no evidence regarding the reasonableness of the officer’s belief that the accused was in possession of narcotics. Writing for a majority of the Court, the Justice therefore endorsed the decision of the lower courts that there had in fact been a violation of s. 8 380 Lamer J. then discussed the application of s. 24(2), and in so doing created what is essentially still the benchmark tripartite test for the application of the Charter ‘s exclusionary mechanism. He began his discussion of the issue by acknowledging that s. 24(2) was intended to take an intermediate position with regard to the exclusion of illegally obtained evidence, rejecting both the Canadian common law position of what was tantamount to automatic inclusion, and the American position of automatic exclusion.38’Lamer J. also clarified that the accused bears the “burden of persuasion” on a balance of probabilities with regard to proving that exclusion of the evidence is necessary to prevent the administration of justice from being potentially brought into disrepute.382 The Justice further ruled that s. 24(2) was not intended to remedy illegal investigative steps taken by the police, even if those steps actually brought the 3761bkL atpara. 5. r ibid. 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 objection by 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 these deficiencies, 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. 85 administration ofjustice into disrepute. Instead, Lamer J. held that s. 24(2) was solely concerned with the “further” disrepute flowing from the admission at trial of the end product of those illegal steps.383 Picking 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 the administration ofjustice. Although Lamer J. acknowledged that public opinion necessarily plays some role in the concept of disrepute, he rejected the idea that such views ought to be determinative of an application pursuant to s. 24(2), stating “[tJhe Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority.”384 Instead, the Justice ruled that in applying s. 24(2), judges must determine whether the admission of evidence would bring the administration of justice into disrepute “[un the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case.”385 Lamer J. further observed that the “[r]easonable person is usually the average person in the community, but only when that communitys current mood is reasonable.”386 It is also important to note that Lamer J. also established that the accused need not prove that admission of the evidence “would” bring the administration of justice into disrepute, but merely that it “could” have that effect. The Justice reached this conclusion by comparing the English 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 better protects that right, the less onerous French text.”387 Thus the English version of the section was essentially “read down” to lower the persuasive burden resting with the accused. The Supreme Court arguably had no choice but to do so as requiring the accused to prove that the administration of justice “would” be brought into disrepute by the admission of certain evidence would be all but impossible in the overwhelming majority of cases. Thus, to prevent the utility of s. 24(2) from being significantly reduced, the Court was stepped in to fix what may have been simply a error in drafting. The heart of the judgment in Collins is comprised of Lamer J.’s interpretation of the phrase “having regard to all the circumstances” as it is employed in the text of s. 24(2). In 383IbicL atpara. 31. Ibid at para. 32. 385 Ibid atpara. 33. 386 Ibid. 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. 387 Collins, ibid at para. 43. 86 defining the term, Lamer J. set out a non-exhaustive list388 of factors for judges to consider, and then grouped those factors into three broad categories. Despite initially being described a