INTRODUCTION: INCONSISTENT REMEDIES II. SECTION 24 (2): THE RATIONALE AND THE REMEDY i. The Current Test ii. Costs of Exclusion iii. An Alternative Model III. SECTION 24(1): A COMPREHENSIVE APPROACH TO CHARTER REMEDIES i. Nasogaluak Revisited: A Proportional Remedy for the Factually Guilty ii. Ward, Conway, and Beyond: Towards an Administrative Law Remedy for the Factually Innocent IV. CONCLUSION: A TALE OF TWO SECTION TWENTY-FOURS I. INTRODUCTION: INCONSISTENT REMEDIES
The Supreme Court of Canada had few kind words for the police officers in R v Cote. (1) Holding that the "police embarked on a systematic violation of Ms. Cote's rights," the Court concluded that the police violated no less than four of the accused's Charter-protected rights, contravened the common law requirements for a voluntary statement, misled a judicial officer in obtaining a search warrant, and delivered unbelievable testimony at trial. (2) Even the Quebec Court of Appeal, which would have admitted the evidence, described the police's conduct in harsh terms: "Il est difficile d'imaginer un autre cas ou un tel ensemble de violations a pu etre repertorie." (3) However, at the end of the day, the courts were confronted with a dilemma: in no uncertain terms, exclusion of the evidence at hand would leave one of the law's most heinous offences unpunished. Upholding the trial judge's determination that the police "deliberately act[ed] abusively," the Supreme Court employed section 24(2) of the Charter to an extent rarely seen: objective, reliable and convincing evidence regarding a murder charge was excluded, and a potential killer was set free. (4)
Contrast this with Ward v Vancouver (City), where the applicant sought redress for having his Charter rights violated. (5) The Vancouver police had been on the look-out for a would-be pie-thrower targeting the Prime Minister, and Mr. Ward partially matched the description available to the police. Although the police discovered that Mr. Ward differed from the description in several material respects, his " Charter rights were violated by Vancouver and British Columbia officials who detained him, strip searched his person and seized his car without cause." (6) Using section 24(1) of the Charter, Mr. Ward's eight-year legal battle for vindication of his fundamental rights culminated in a paltry award of $5,000. (7)
These two remedies, viewed together, appear wildly disproportionate. On the one hand, Ms. Cote had the superb luck of having her Charter rights repeatedly violated, since she now escapes a murder conviction--the temporary violation of her Charter rights is almost certainly preferable to a lengthy prison term. As per the wording of section 24(2), the Court in Cote excluded the evidence because its admission would bring the administration of justice into disrepute. Yet in Ward, the remedy hardly equalled that of a lifetime of continued liberty. And the reason why Mr. Ward received a less substantial remedy? Simply because he was innocent. Indeed, had Ward in fact been the alleged pie-thrower, any evidence against him would likely have been excluded under section 24(2). Under what basis is the repute of the administration of justice better maintained by giving greater restitutionary relief to the guilty than to the innocent?
The remedies of sections 24(1) and (2) as they stand cannot be reconciled. If we are truly concerned with public confidence in the administration of justice, both sections require re-examination. There is too much ambiguity surrounding the rationale and application of section 24(2), resulting in undesirable, and often incompatible outcomes. Given the very real costs of excluding evidence in criminal trial, courts should take a serious look at what benefits section 24(2) actually confers on society, and whether those benefits cannot be more justly and efficiently attained elsewhere. In my view, section 24(2) justly condemns bad faith and systematic abuse of Charter-protected interests, but in its other functions acts as a heavy-handed and disproportionate remedy.
What makes resort to section 24(2) especially confounding is that there exists a much more effective, just, and proportionate vehicle for addressing constitutional violations in section 24(1). The broad wording of this section allows courts to craft effective remedies that extend beyond the all-or-nothing proposition inherent to the exclusion of evidence. As such, I propose that the ambit of section 24(2) be curtailed in favour of a comprehensive approach to Charter violations in section 24(1). This comprehensive approach is comprised of two elements: first, a mechanism for sentence reduction to remedy Charter violations against the factually guilty; and second, an effective vehicle for constitutional Ward damages to remedy Charter violations against the factually innocent.
This essay proceeds in three parts. First, I examine the current state of the law on section 24(2), highlighting some of the persistent ambiguities in the decisions to exclude evidence. By examining the Supreme Court's purported rationale for excluding evidence, and the test used to make the case-by-case determination, I illustrate the uncertain benefit accruing from application of section 24(2). In particular, the public confidence rationale provides an overly abstract view of why society should experience very real costs. Given that the benefits are few, exclusion should be confined to cases where evidence of systematic or conscience-shocking Charter violations exists.
Second, I suggest that the most important benefits of section 24(2) could be better attained by a robust section 24(1), for both those who have been charged with a crime and those who have not. To provide a remedy for the factually guilty, effectively replacing the regime set out in R v Grant, (8) the Supreme Court should revisit its ruling in R v Nasogaluak, (9) and allow criminal courts to grant sentence reductions in response to Charter violations. Such an approach would allow courts to develop a tailored response to state misconduct, instead of the binary approach required by exclusion of evidence.
To provide a remedy for the factually innocent, the regime for constitutional damages established in Ward needs to be made accessible. While the Supreme Court has devised an appropriate framework for awarding damages, it has not provided a template for making Ward damages available to the vast majority of those who have suffered breaches of their Charter rights. As it stands, the prohibitive costs of superior court litigation will dissuade most victims from raising claims. Consequently, in Section 3, I canvass some options that have been proposed, and conclude that Ward claims would be most effectively addressed in provincial human rights tribunals
Undoubtedly, my proposals are ambitious, and would require a significant modification to the existing jurisprudence, as well as legislative intervention. It has only been three years since Grant was decided, and two years since Nasogaluak. This note envisions reconsiderations of both. However, the Supreme Court has indicated that it is willing to revisit prior decisions where there are "compelling reasons to do so." (10) Indeed, the "Court has made it clear that constitutional decisions are not immutable, even in the absence of constitutional amendment", (11) and this includes Charter decisions. (12)
The fact of the matter is that an unacceptable number of individuals are left without a remedy for Charter violations. As of the date of this note, not a single court has granted Ward damages. (13) In contrast, where courts find that someone accused of a crime has suffered a Charter violation, evidence has been excluded under section 24(2) in an astounding 70% of those cases. (14) The current framework provides a disproportionate and undue windfall to the criminally accused, while effectively forcing innocent people to live with violations of their rights. If anything casts doubt on the repute of the administration of justice, surely it is this. The unfairness inherent in the availability of constitutional remedies and the lack of sound principle reconciling the two provisions are reason enough to revisit the issue. (15)
SECTION 24 (2): THE RATIONALE AND THE REMEDY
Before considering the Supreme Court's interpretation of section 24(2), some textual observations are appropriate. Section 24(2) of the Canadian Charter of Rights and Freedoms provides that
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 of justice into disrepute. (16) The first thing to note is that proceedings under section 24(2) are derivative of section 24(1) applications, since the remedy is only available "in proceedings under subsection (1)." (17) This is significant because it implies that the remedy of exclusion in criminal matters is merely a subset of the broader "appropriate and just" remedies available in section 24(1). Consequently, having different rationales and procedures for each subsection is inconsistent with the dualistic nature of the provisions.
Second, despite the provision's length, it is devoid of significant specific instructions on when exclusion is appropriate. The section holds that evidence "shall" be excluded where its admission "would bring the administration of justice into disrepute." (18) But what informs the repute of the administration of justice is entirely a matter for the Supreme Court to decide. Consequently, a variety of rationales such as condonation, deterrence, vindication, and restitution all potentially fall within the ambit of section 24(2), and it is the court's sense of public policy that guides where the fault lines...
A tale of two section twenty-fours: towards a comprehensive approach for charter remedies.
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