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Tainted evidence can be used to convict: court Add to ...


The Supreme Court of Canada has moved to silence critics of the Charter of Rights by reducing the thousands of cases where evidence is tossed out on the basis of police violating the rights of an accused person.

In a series of long-awaited landmark rulings, the court yesterday said evidence that has been modestly tainted by police misconduct can be used to convict defendants - unless the violation was blatant and would shake public faith in the justice system.

"In all cases, it is the long-term repute of the administration of justice that must be assessed," Chief Justice Beverley McLachlin wrote for the majority in one ruling.

She conceded that, while tossing out evidence frequently provokes a storm of criticism, the exclusion of evidence cannot "focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence."

The rulings were the most important criminal law cases the court has heard in several years. The category of evidence at stake in the cases included everything from breath and saliva samples to verbal statements or concealed weapons.

The cases provided the court with an opportunity to redesign rules that have routinely led to evidence being barred in scenarios of self-incrimination. The court observed yesterday that the existing exclusionary rules were too automatic, difficult to apply, "and may lead to unsatisfactory results."

Still, the upshot of the rulings was less devastating than some in a broad section of the criminal defence community had feared.

Frank Addario, president of the Criminal Lawyers' Association, expressed relief that the court did not gut a liberal regime set up 12 years ago, known as the Stillman rules.

In the Stillman case, the Supreme Court took a rigid view of self-incriminating evidence derived from improper police conduct. It said that exclusion would be virtually automatic if admitting it "would tend to bring the administration of justice onto disrepute."

"I like the emphasis on discouraging deliberate breaches of the Charter," Mr. Addario said. "From a civil-liberties perspective, it sends the right message. The Constitution is not an optional honour code that can be ignored if it constrains the police."

Queen's University law professor Donald Stuart said the court supplied "a totally revised and less technical approach" to excluding evidence, which focuses on the seriousness of Charter breaches by police - not the seriousness of an offence.

"Our court has fashioned a uniquely Canadian, balanced approach of which we should all be proud," Prof. Stuart said.

In the first case - R v. Donnohue Grant - Mr. Grant admitted to suspicious police who encountered him on a Toronto street that he was carrying a loaded gun and marijuana.

The Supreme Court majority said yesterday that Mr. Grant ought to have realized from the "sustained and restrictive tenor" of the police's conduct that it had moved from a casual encounter into an actual investigation. The breach of Mr. Grant's right to counsel was "not at the most serious end of the scale," the court said, while the gun constituted such reliable evidence that it necessitated a full trial.

In a second case, R v. Bradley Harrison, the court voted 6-1 to exclude evidence of cocaine trafficking on the basis that a police officer had shown "blatant disregard" for Mr. Harrison's right to be free of unreasonable search and seizure. It condemned an Ontario Provincial Police officer who searched Mr. Harrison's car without a valid reason, uncovering 35 kilograms of cocaine.

"To appear to condone willful and flagrant Charter breaches amounting to a significant incursion on the accused's rights does not enhance, but rather undermines, the long-term repute of the administration of justice."

In a sidelight of yesterday's rulings, the court used a third case - R v. Musibau Suberu - to clarify when a person who is not being physically restrained is nonetheless under a form of psychological restraint.

Upholding Mr. Suberu's conviction for possessing property obtained by crime, it said: "Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply."

In the fourth case, the court ordered a new trial for a Saskatchewan man - Curtis Shepherd - who was acquitted in an impaired-driving case because his arresting officer had insufficient grounds to order a breath analysis test.

The court said the officer had ample reason to suspect Mr. Shepherd of being drunk.


Three-part test

The Supreme Court of Canada supplied a clear road map yesterday for trial judges who face the exceedingly tricky task of excluding evidence in criminal trials.

It produced a three-part test that begins with an assessment of the seriousness of the Charter breach. Trial judges must then move to a consideration of the impact of that breach on a particular defendant's constitutional rights. The third step involves gauging society's interest in the case being tried - rather than short-circuiting it based on a procedural breach.

The tests will stand as "a decision tree" with which trial judges and appellate courts can evolve the law of exclusion, the court said.

"No overarching rule governs how the balance is to be struck," it said. "Mathematical precision is obviously not possible. ... The impact of a Charter breach may range from fleeting and technical to profoundly intrusive."

It said that a breath sample or a hair that is improperly plucked from a suspect's head by police will be less intrusive and demeaning - and therefore less likely to be excluded on account of a Charter violation - than a cavity search.

It said that an unreasonable search "that intrudes on an area in which the individual enjoys a high expectation of privacy - or that demeans his or her dignity" is more serious than one that does not.

Similarly, an incriminating statement runs a higher risk of being excluded if the suspect who uttered it felt compelled to talk, the court said: "The admission of unreliable evidence serves neither the accused's interest in a fair trial, nor the public interest in uncovering the truth."

The court warned police not to assume that it has given them an open invitation to violate the Charter, simply because some evidence may be admitted in the face of serious misconduct.

"The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law," Chief Justice Beverley McLachlin wrote.

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