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Fruits of Police Conduct Potentially Discrediting the Administration of Justice.

Writer's picture: Christian KénolChristian Kénol

The premise is as follows: there must be control over the coercive power of the State vis-à-vis its population to avoid systemic unconstitutional abuses. This control is part of a long-term perspective.


There is no doubt that police officers are obliged to know and understand the state of the law. Moreover, the  Code de déontologie des policiers du Québec (Quebec Police Ethics Code) stipulates in articles 3 and 6 a high standard of awareness and respect for rights guaranteed by the Charter:


3. This Code aims to ensure better protection of citizens by developing high standards of service to the population and professional awareness within police services in respect of the rights and freedoms of the individual, including those set out in the Charter of Human Rights and Freedoms.


6. The police officer must avoid any form of abuse of authority in their dealings with the public.


Furthermore, as recently reaffirmed by the Supreme Court:


Police officers are obliged to have an adequate knowledge and understanding of criminal and penal law, of the offences they are called upon to prevent and repress and of the rights and freedoms protected by the Charters. They also have an obligation to know the scope of their powers and the manner in which these powers are to be exercised....


Citizens rightly expect them to have an adequate knowledge and understanding of the statutes, regulations and by‑laws they are called upon to enforce and of the limits of their authority (see, e.g., Bellefleur v. Montréal (Communauté urbaine de), [1999] R.R.A. 546 (Que. Sup. Ct.), at p. 550; R. v. Rouleau, 2002 CanLII 7572 (C.Q.), at para. 103). Police officers cannot claim to carry out their mission — to maintain peace, order and public security and to prevent and repress crime and offences under the law and by‑laws (Police Act, s. 48 para. 1) — without having an adequate knowledge and understanding of the fundamental principles of criminal and penal law, of the rights and freedoms protected by the Charters and of the offences they are called upon to repress, and without knowing the limits of their authority.[1]


Section 24(2) of the Canadian Charter of Rights and Freedoms (Charte canadienne des droits et libertés) provides that: "(w)here...the court has concluded that evidence was obtained under conditions that infringe the rights or freedoms guaranteed by this charter, such evidence shall be excluded if it is established, in light of the circumstances, that its use would likely bring the administration of justice into disrepute."


To avail themselves of the right to have incriminating evidence excluded, the accused must first prove the violation of the protected right and secondly establish that the use of the evidence obtained (following police conduct) would diminish public regard for the administration of justice. As the existence of a constitutional right violation means that the administration of justice has already been compromised, Article 24(2) of the Charter aims to ensure that evidence obtained through this violation does not further discredit the justice system. When assessing evidence, the court will generally distance itself from police misconduct so as not to send the message that the justice system tolerates State misconduct. The Supreme Court recognizes that the objective pursued by Article 24(2) of the Charter is the "long-term maintenance of the integrity of the justice system and trust in it"[2]. Thus, if a judge concludes that evidence was obtained under conditions that infringe the rights guaranteed by the Charter, such evidence is likely to be excluded. For instance, when a police officer searches a vehicle without reasonable cause and finds 35kg of cocaine, the discovery of the cocaine will be inadmissible as evidence[3]. The integrity of our criminal justice system and the respect that the state owes to the Charter often matter more than the conviction of an accused.


Therefore, the court considering an exclusion request based on Article 24(2) of the Charter must evaluate and weigh the effect that the use of the evidence would have on societal confidence in the justice system, taking into account three considerations:


(1) the severity of the offending conduct by the State (use may suggest that the justice system tolerates serious State misconduct),


(2) the impact of the violation on the accused's Charter-protected rights (use may suggest that individual rights are of little weight), and


(3)society's interest in having the case judged on its merits..


1.1 The severity of the offending conduct by the State;


The more serious or deliberate the actions leading to the Charter violation by the police, the more necessary it is for the courts to dissociate themselves by excluding the evidence. At this stage, the crown will generally try to demonstrate that the police acted in a manner compatible with what they subjectively, reasonably, and non-negligently believed to be the law. However, the circumstances surrounding arbitrary detentions and searches are governed by well-established case law and are generally not likely to lead the police into uncharted legal territory. Moreover, the failure of the police to consider other legally available investigative techniques will weigh in favor of serious police conduct (see R. c. Feeney, [1997] 2 R.C.S. 13, par. 76).


1.2 The impact of the violation on the accused's Charter-protected rights;


This step focuses on the rights protected by the Canadian Charter of Rights and Freedoms that have been violated, particularly those protected by Article 8 (unreasonable search), Article 9 (arbitrary detention), Article 10 (reasons, right to a lawyer...). It is necessary to ask whether the violation actually infringed upon the interests protected by the right in question and to assess the real extent of the infringement. If multiple and cumulative Charter violations occurred during the investigation process, it strongly argues in favor of exclusion (see R. c. Boudreau-Fontaine, 2010 QCCA 1108, paragr. 59.).


1.3 Society's interest in having the case judged on its merits;


Society's interest in having the case judged on its merits usually argues in favor of including the evidence. However, the third criterion becomes particularly important when one of the first two (but not both) argues in favor of excluding the evidence. When the first two criteria, considered together, argue in favor of exclusion, the third will rarely, if ever, tip the balance in favor of using the evidence. Conversely, if the first two questions considered together support exclusion less, the third question will most often confirm that the use of the evidence is not likely to bring the administration of justice into disrepute.[4]


1.4 Conclusion:


Generally, it is the combination of the severity of the Charter-infringing conduct (first aspect of the analysis) and the impact of the violation on the accused's Charter-protected rights (second aspect of the analysis) that will determine whether the balance tips in favor of exclusion.


Types of police behavior akin to "fishing expeditions" violate the rule of law and are not encouraged by our justice system. The use of evidence resulting from this type of behavior may suggest that constitutional rights are of little weight and may encourage police to overlook them in future interactions with Canadian subjects. As the Supreme Court points out:



Even if society's interest in having a case judged on its merits is significant and the offenses charged against an accused are objectively serious, the severity of the State's conduct and its impact on the rights guaranteed by the Charter will generally be deemed likely to bring the administration of justice into disrepute if the resulting evidence is admitted at trial because:


An “adjudication on the merits”, in a rule of law state, presupposes an adjudication grounded in legality and respect for longstanding constitutional norms.[6]


As guardians of the common law, judges are called upon to prevent irregularly obtained evidence from being taken into account if it undermines the sound administration of justice.

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[1] Kosoian c. Société de transport de Montréal, 2019 CSC 59, paragr. 55 et 58.

[2] R. c. Grant, 2009 CSC 32, paragr. 68.

[3] R. c. Harrison, [2009] 2 R.C.S. 494, paragr. 1 et 42.

[4] R. c. Le, 2019 CSC 34, paragr. 142.; R. c. Paterson, 2017 CSC 15, paragr. 56.

[5] R. c. Grant, supra, note 2, paragr. 75.

[6] R. c. Le, supra, note 4, paragr. 158.


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