BENJAMIN
GOOLD
Over the past year, the
Supreme Court of Canada
(SCC) has repeatedly returned
to the question of how to treat
evidence obtained in breach of
a Charter right.
The court established in R. v.
Grant, [2009] S.C.J. No. 32
that it is appropriate for a court
to consider whether the police
were “acting in good faith”
before deciding to exclude evidence under s. 24( 2) of the
Charter. Subsequently, in both
R. v. Beaulieu, [2010] S.C.J.
No. 7 and R. v. Morelli, [2010]
S.C.J. No. 8, the SCC reiterated
the importance of looking at
police intentions when considering whether the admission of
evidence is likely to bring the
administration of justice into
disrepute. Moreover, the court
has continued to stress that s.
24( 2) should not be used to
punish the police. Instead, it
has held that the purpose of the
section is to ensure that evidence obtained in breach of the
Charter does not do further
damage to the reputation of the
justice system, or lead to a loss
of public confidence in the rule
of law.
Although this interpretation
of s. 24( 2) was recently affirmed
by the SCC in R. v. Cornell,
[2010] S.C.J. No. 31, the decision is notable for the fact that
three members of the
court—Justices Binnie, Le Bel
and Fish—were willing to
exclude evidence seized during
“A significant
proportion of the
court seems to have
concerns about the
latitude being given
to the police as a
result of Grant.
a police raid on the grounds
that the search constituted a
serious affront to the adminis-
tration of justice. Writing for
the minority, Justice Fish
rejected any suggestion that the
actions of the police—which
included forcing their way into
a private residence with a bat-
tering ram and restraining a
mentally disabled man face-
down with hand-cuffs — could
be seen as reasonable in the
circumstances, particularly
given that the police had no
reason to believe that there
were firearms or any other
weapons on the premises.
Instead, he argued that the
“grossly excessive and entirely
unjustified violence” and
“psychological intimidation”
that characterized the search
meant that it would be against
society’s interests to admit the
evidence.
concluded that there was “no
justification for attributing this
[deterrent] role, even indirectly,
to Section 24( 2).” Although the
minority in Cornell does not
refer to questions of deterrence,
Justice Fish does suggest that
admitting the evidence in this
case would “do a disservice not
only to police officers, but to
trial judges as well, by failing to
give them the constitutional
guidance this Court is expected
to provide.”
What is “constitutional guid-
ance” in the context of s. 24( 2)?
If we assume that the minority
was not seeking to reintroduce
the idea of deterrence (despite
the reference to “discouraging”
police disregard for various
legal safeguards), what is the
purpose of such guidance and
how is to be understood in light
of the decision in Grant If one
justification for excluding evi-
dence is to help the police
understand the Charter and the
limits it imposes on the exercise
of their powers, how does this
differ from deterrence?
These questions are left
unanswered by the minority in
See Cornell Page 13
NSCA orders new trial over lack of jury pool disclosure
DONALEE MOULTON HALIFAX
In the absence of full disclosure about a jury pool by the
Crown, the Nova Scotia Court of
Appeal has ordered a new trial for
a man accused of trafficking.
“To my knowledge, there are
no other similar cases in Nova
Scotia,” said Ann Marie Simmons, senior counsel with the
Public Prosecution Service of
Canada in Halifax.
In this case, the appellant had
previously elected trial by judge
and jury on charges of produc-
tion and possession of marijuana
for the purposes of trafficking. In
preparation for that trial, coun-
sel for the Crown sent a copy of
the list of potential jurors to the
lead investigator, requesting that
the police check the names
against standard databases
accessible by the police for crim-
inal records. The police complied
with this request. However, the
defence was unaware of the
Crown’s request and knew noth-
ing of the information provided
by the police.
“The failure to disclose
the information, in the
circumstances of this
trial, gave the Crown an
unfair advantage that
actually impacted on
the selection of the jury.
counts were returned. Sentencing
was adjourned to July 20. Before
then, the Crown counsel, for
whom this was his first jury trial,
became aware that the practice of
doing criminal record checks on
prospective jurors was the subject
of some controversy. After con-
sulting with one of his super-
visors, efforts began to gather
documentation regarding the
checks done by the RCMP.
Defence counsel was told about
what had taken place and that
further details would be provided.
