Section 24(2): does the truth cost too much?

• Author: Pearn, Matthew
• Position: Canada

"Truth, like all other good things, may be loved unwisely--may be pursued too keenly--may cost too much." (1)

The Supreme Court of Canada in its 2009 Grant trilogy (2) significantly shifts the Canadian rationale for excluding probative evidence from a criminal trial when a state actor has breached a defendant's constitutional rights as guaranteed by the Charter. (3) The majority decision from R v Grant has broadened the trial judge's discretion to either exclude or include evidence under section 24(2) of the Charter in this new test for determining when a criminal investigation may bring the system of justice into disrepute. (4) In rewriting the test for Charter exclusion, the Court has abandoned the requirement that trial judges protect the fairness of the criminal trial by automatically excluding both conscripted testimony from the criminally accused and any otherwise non-discoverable evidence uncovered through police investigations arising from comments made during the forced testimony. (5) Trial judges may now accept into the record otherwise undiscoverable derivative physical evidence collected by police and the Crown may now attempt to use this evidence in its prosecutions. (6) The Charter remedy of exclusion which had, prior to Grant, barred this evidence also supported the expectation that the Crown bear the burden of proving its own case and respected the principle that the state cannot force the criminally accused to self-incriminate. This created a balance of power between the criminally accused and the state which may be upset if Grant is applied in a fashion that regularly allows certain kinds of evidence to be admitted into the trial record.

While Grant rejects large swaths of the section 24(2) jurisprudence, the Court views its re-imagining of the Charter exclusion remedy as more revisionary than revolutionary. (7) As Justice David Doherty of the Ontario Court of Appeal observed, in Grant the Court has taken a judicial "wire brush to the 20 years of jurisprudential gloss that had built up around s.24(2) and scrubbed down to the bare words of the section." (8) The Court's goal in Grant is to create a remedy of exclusion which better respects the text of section 24(2), while simultaneously placing a renewed emphasis upon the truth-seeking function of the court and the public's interest in adjudication on the merits. Grant resets the law, freeing trial judges to include or exclude any evidence obtained through a Charter breach if doing so will best protect the longterm reputation of Canada's administration of justice. The Grant majority emphasized appellate deference to this inherently factual inquiry, which requires a judge to consider whether in all the circumstances of each individual case the exclusion of evidence is the appropriate remedy. (9)

The Grant test overrules the earlier dictum from Stillman where whole categories of illegally obtained evidence were presumptively excluded in order to ensure that a criminal defendant would receive a fair trial. (10) Grant re-affirms the more traditional truth-seeking preference of the courts to exclude untrustworthy forced testimonial evidence and to thoroughly scrutinize all improperly collected physical evidence of probative value before excluding it. This distinction was partly lost in the Stillman definition of conscriptive evidence, and even trivial conscription was treated as an absolute bar upon entering evidence into the trial record. Grant improves upon Stillman by better respecting the section 24(2) goal of examining, in the totality of circumstances, whether the admission of evidence would bring the system of justice into long-term disrepute. In particular, it focuses upon whether police have demonstrated good faith in attempting to comply with the Charter rights of the criminally accused.

However, this focus upon good faith policing standards comes at the expense of any direct examination into whether the fairness of our adversarial criminal prosecutions has been upset by admitting improperly collected evidence. The Court in Grant appropriately identified that the reputation of the justice system will be harmed if trial judges are seen to support police abuse of constitutionally protected rights, but as courts generally presume that police carry out their duties in good faith, it is likely that trial judges will fail to consistently apply this check on state power. (11) Trial fairness and its rules, which are favourable to the criminally accused, impeded the successful prosecution of criminals in order to limit state power and created a measure of balance between the state and the criminally accused. (12) This balance required that certain kinds of evidence must be presumptively (if not absolutely) excluded, because the state should not be able to use its limitless resources to force the criminally accused to participate in his or her own conviction. If state power goes unchecked in this regard, this too will, in the long-term, diminish the reputation of Canada's administration of justice. As the public will only accept the correctness of decisions rendered by a justice system which assures that the public's rights are valued by the state, the important and multifaceted concept of trial fairness provided guidance upon when to use the remedy of exclusion to correct an abuse of state power. The Court in Grant abandoned the expectation that trial judges explicitly consider trial fairness at the price of precision in when evidence should be excluded.

In stripping section 24(2) back to its bare text, the Court in Grant simultaneously unsettled the law and ignored the historic purpose of this exclusion remedy. The Court further re-opened the possibility of admitting probative evidence which the drafters of section 24(2) intended to see excluded from the trial record. The Court in Grant properly affirmed the broad discretion of trial judges to exclude evidence when necessary, and denounced the historic injustice created by preventing judges from excluding evidence except in those rare situations where "the allowance of evidence [was] gravely prejudicial to the accused, [its] admissibility [was] tenuous and [its] probative force ... trifling". (13) However, in resettling the remedy of exclusion, the Court overlooked that this Charter discretion was created in order to ensure that all who are criminally accused receive a fair trial. (14) Following Grant, uncertainty and imprecision in the outcome of section 24(2) applications will be the rule until new "patterns ... emerge with respect to particular types of evidence", providing guidance to judges in future cases. (15) While in the short-term judges seem inclined to use their broad discretion to exclude a great deal of evidence, (16) the structure of the new section 24(2) test may allow for an easy swing to either extreme. Further, in directing the trial judge to uphold the truth-seeking institution of the courts without reference to the necessary counterpoint of trial fairness, the Court in Grant tips the balance too far in favour of truth over justice.

The approach from Grant inferentially accepts that where the court fails to exclude evidence in the face of a Charter breach, a trial judge may avoid bringing the administration of justice into further disrepute by simply declaring that a Charter breach has occurred. The drafters of Charter sections 24(1) and (2) explicitly rejected declaratory remedies of this kind as an appropriate response to a Charter breach. (17) Moreover, Canada's courts have suggested that Charter section 24, as a whole, is a tool intended to "help fulfil the realization of our constitutional ideals". (18) These sections should be understood as a "sincere attempt on the part of society to provide full and adequate remedies for the violation of fundamental rights and freedoms [because to] have a right or freedom without an adequate remedy is to have a right or freedom in theory only--a hollow or empty right." (19) As section 24(2) interpretation under Grant will undoubtedly leave many criminally accused without a remedy for rights highly valued in Canadian society, the repute of the justice system will remain tarnished when no substantial remedy is open to a criminally accused. If Canada's courts are to protect the long-term reputation of the administration of justice, trial judges must possess some other remedy for when the exclusion of evidence cannot be justified.

The Supreme Court of Canada (SCC) is considering alternative Charter remedies under section 24(1) and it must develop these alternatives in order to rein in government abuse and to ensure respect for Charter rights. The Court must also create a better remedial scheme in order to ensure that trial judges do not overly rely upon their new, broad discretion to exclude evidence under section 24(2). (20) As the SCC recently acknowledged in Vancouver v Ward, courts may legitimately grant Charter remedies to deter future Charter breaches. (21) In failing to develop an appropriate alternative remedy to section 24(2) exclusion, we will leave many whose rights are breached without a remedy and will generally undermine the value of Charter rights belonging to society at large, perhaps legitimizing future state abuse of these rights. Until the appropriate alternatives to the remedy of exclusion are developed, it can be appropriately asked: does our court's search for the truth cost too much?

Grant dissolves the much loathed categories of conscripted and non-conscripted evidence in favour of examining whether, in all the circumstances involved in the collection of probative evidence, any evidence regardless of its status as conscribed or non-conscribed should be excluded. While the Court recognized that forced confessions are almost certainly excluded, (22) it abandoned any concern for whether real evidence was discovered by police as a consequence of forced testimony from the criminally accused. (23) Most...