# Unconstitutional? Yes, it is. But, who cares - it's irrelevant because the police acted reasonably. **URL:** \ **Category:** Factual Questions\ **Created:** [June 13, 2014, 7:30pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725 "2014-06-13T19:30:09Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [June 13, 2014, 7:30pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/1 "2014-06-13T19:30:09Z")
Today, the Supreme Court of Canada issued [its ruling](http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14233/index.do) in what had been anticipated, if not trumpeted, beforehand as promising to be a ‘momentous’ and ‘important’ decision involving on-line privacy in Canada. [Here](http://www.cbc.ca/news/technology/internet-users-privacy-upheld-by-canada-s-top-court-1.2673823) is the CBC’s report on it. I’ll summarize the essence of the case by noting that it revolved around a guy who was convicted of possessing child porn. The key point, though, was that despite there being no search warrant having been issued or presented, the police became aware of said possession by virtue of them asking for, and receiving from, his ISP the name, address, etc. of the person attached to the IP address to which the porn was being downloaded. The guy claimed that his conviction should be thrown out since he had been convicted in large part on the basis of a warrantless search, the latter being contrary to the Canadian Constitution. His case made its way to the Supreme Court of Canada (SCOC) which, as I noted above, announced its decision earlier today. SCOC’s opinion (if I’ve read and interpreted things correctly) is that, indeed, the search _was_ unconstitutional - warrants are required for such a search to be allowed. That said, notwithstanding the unconstitutionality of the process by which the guy was convicted, his conviction must still stand! Why? Well, apparently because the “police acted reasonably and in good faith, so the administration of justice would be impaired if the evidence gathered by searching Spencer’s home in this particular case were thrown out of court”. So let’s see if I’ve got this straight: despite the fact that warrantless searches of this sort are contrary to the highest and most overarching ‘laws’ of the nation, they can still be used to help convict people so long as the cops are acting in good faith with their search. That’s about it, eh? First question: in all seriousness, have I understood things correctly? Second question: what exactly is the purpose of a constitution if ‘one offs’ are allowed? This case shows one example of a such a ‘one off’. [Here’s](https://en.wikipedia.org/wiki/R._v._Keegstra) another (link goes to a case where SCOC said, yes, this guy’s freedom speech/expression was unconstituionally infringed but that’s okay because the speech and ideas he promulgated were hateful, etc.). Thanks! ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [June 13, 2014, 7:37pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/2 "2014-06-13T19:37:42Z")
There are lots of cases (and journal articles) discussing the propriety and necessity of the exclusionary rule. It does not automatically follow that illegally obtained evidence should be suppressed at trial. “Why should the criminal go free because the constable erred?” is the way it is often expressed. Don’t like the cops actions? Sue them, or get them fired. But, you’re still going to jail. (I’m not advocating this view, just expressing it. ) [Canada apparently doesn’t follow the US exclusionary rule](http://www.nytimes.com/2008/07/19/us/19exclude.html?pagewanted=all&_r=0): > [@](#): > > “Without minimizing the seriousness of the police officer’s conduct or in any way condoning it,” the Court of Appeal for Ontario ruled in Mr. Harrison’s case in February, “the exclusion of 77 pounds of cocaine, with a street value of several millions of dollars and the potential to cause serious grief and misery to many, would bring the administration of justice into greater disrepute than would its admission.” The case is now before the Canadian Supreme Court. Tough cases make bad law, and all that. Child pornographers are not the kind of defendants that the Court wants to help. I once lost a motion to suppress evidence in a murder case that I’m certain would have been granted if the evidence discovered was anything less damning than the murdered body. ---
**Author:** ![C\_K\_Dexter\_Haven](https://avatars.discourse-cdn.com/v4/letter/c/b2d939/32.png) [@C\_K\_Dexter\_Haven](https://boards.straightdope.com/u/C_K_Dexter_Haven)\ **Post date:** [June 13, 2014, 7:58pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/3 "2014-06-13T19:58:27Z")
I ain’t a lawyer, and I ain’t a Canadian, but I do know that in some countries (the US of A is a prime example) what’s important is the LETTER of the law, the exact wording and the way she’s written. In other countries, the SPIRIT of the law is more important than the letter of the law, and so, yeah, oops, we shoulda got a search warrent but we didn;t – technical screw-up, but you’re goin’ to gaol anyhow. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [June 13, 2014, 8:17pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/4 "2014-06-13T20:17:02Z")
Frankly, I think I’m surprised that there’s an expectation of privacy in one’s IP address, such that an ISP cannot voluntarily comply with an informational request. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 13, 2014, 9:03pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/5 "2014-06-13T21:03:36Z")
Haven’t read that case so can’t comment on it, but the Canadian exclusionary rule is not automatic. It gives the court the discretion to admit or exclude, depending on the facts of the case. One situation where the evidence may be admitted, even if there was a breach of a Charter right, is if the law was not clear. Not all searches in Canada require a warrant, and not all information-gathering amounts to a seizure. If the police in good faith believed that they were complying with the law, but the court rules for the first time on that issue and says that they had not, is it fair to exclude the evidence? The police would be put on notice that in future cases they would need to comply with the new standard. A ruling to admit based on good faith only applies to that first case. With respect to the Keegstra case, the OP is not reading the SCC case correctly. The Court ruled that the Criminal Code provision was constitutional. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [June 13, 2014, 9:20pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/6 "2014-06-13T21:20:04Z")
> [@Northern\_Piper](#): > > If the police in good faith believed that they were complying with the law, but the court rules for the first time on that issue and says that they had not, is it fair to exclude the evidence? Well, since you asked. **The exclusionary rule punishes recklessness and malice** and makes sure the rights of the merely suspected are protected from both prosecutors and police looking to look good and prosecutors and police looking to harass a politically inconvenient private party or individual. The Crown has a military and the mantle of sovereignty, giving it awesome powers both at trial and in the outside world. The only checks on those powers are those Canadian society has created constitutionally in order to grant the Crown’s governments legitimacy. When the Crown erodes those checks, it is sawing away at the branch it’s sitting on, especially when it erodes a check which protects individuals from asshole or motivated prosecutors and police officers. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [June 13, 2014, 10:32pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/7 "2014-06-13T22:32:26Z")
Thanks, I appreciate such a thoughtful set of responses. And, before I forget, with respect to the Keegstra case (where freedom of expression was limited when it came to “hate speech”) let me state absolutely and unequivocally that Keegstra was a slimeball. That said, and as is probably apparent from my earlier post, I am a firm believer in the dictum that “sunlight is said to be the best of disinfectants”. Finally, **Northern Piper** , in what sense have I misread the Keegstra case? I, am of course, not disputing your expertise; just trying to learn. Thanks! ---
**Author:** ![jtur88](https://avatars.discourse-cdn.com/v4/letter/j/e9c0ed/32.png) [@jtur88](https://boards.straightdope.com/u/jtur88)\ **Post date:** [June 13, 2014, 11:54pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/8 "2014-06-13T23:54:42Z")
> [@Procrustus](#): > > Child pornographers are not the kind of defendants that the Court wants to help… The guy was not a “child pornographer”, he merely possessed material that had been produced by a child pornographer, who was very likely beyond the reach of Canadian jurisdiction. At a minimum, a police action that circumvents the constitution should at the very least have the effect by itself of preventing a person becoming a victim of an ongoing or future crime. An arrest in this case would do nothing to mitigate any present or future harm being done to any identifiable victims. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 14, 2014, 8:10am UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/9 "2014-06-14T08:10:27Z")
> [@KarlGauss](#): > > Finally, **Northern Piper** , in what sense have I misread the Keegstra case? I, am of course, not disputing your expertise; just trying to learn. > > Thanks! It was this phrase in your OP: > [@](#): > > Here’s another (link goes to a case where SCOC said, yes, this guy’s freedom speech/expression was unconstituionally infringed but that’s okay because the speech and ideas he promulgated were hateful, etc.). The SCC did not say that Keegstra’s freedom of expression was unconsitutionally infringed. Under our Charter, there are two steps to the analysis. First, has there been an infringement of one of the Charter rights? second, even if there has been an infringement, can the government justify it under s. 1 of the Charter, which reads: > [@](#): > > 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. If the government can meet this test, then there has not been an unconstitutional infringement of the Charter right. That’s the point in your OP that I disagreed with. In _R. v. Keegstra_, the majority and the dissent in the SCC agreed that the hate publication provision of the Criminal Code infringed freedom of expression. The point in dispute was whether that provision could nonetheless be justified under s. 1 of the Charter. The Court split 4-3 on that issue, with the majority ruling that although there had been an infringement, it was justified under s. 1 and therefore overall, the provision was constitutional. The dissent disagreed, and would have held that the provision could not be justified under s. 1. Given the ruling, it is not correct to say that Keegstra’s freedom of expression was unconstitutionally infringed. The SCC ruling meant that the provision was constitutional and properly applied to Keegstra. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [June 14, 2014, 12:32pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/10 "2014-06-14T12:32:34Z")
IANAL, Piper has said it better, but IIRC the rule in Canada is that the test is “does the action bring the administration of justice into disrepute”? An honest and reasonable belief by the police that they were acting correctly (if the judge agrees) probably does not. There is no blanket exclusion as found in US law, where that single violation however innocently, poisons and excludes the entire tree of evidence. A confession beaten out of someone, a house blatantly searched without a warrant, someone stopped on the street for no reason - obviously not good for reputation of justice and police should have known better. The guy may not have been _making_ chil pornography, but the whole case started and revolved around the fact that he _distributed_ it. He was caught from using LimeWire, where the files you download are typically also available for upload. When they searched, they also found the files; distribution and possession - not good things. Also, Canada does not have free speech. ( [David Ahenakew - Wikipedia](http://en.wikipedia.org/wiki/David_Ahenakew) ) The weasel words in the compromise that is our constitution, and the ability of parliament to override many constitutional provisions, guarantees that. As a result, like the UK with its ASBO’s, terrorist trials, etc. - Canada can and does slowly chip away at the fabric of a free society. Fortunately our Supreme Court still adheres to the principles of common justice, since apparently there is no other balance against a majority government. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [June 14, 2014, 5:42pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/11 "2014-06-14T17:42:10Z")
Now that a day has passed, it’s interesting to see the many [headlines](http://www.cbc.ca/news/technology/internet-users-privacy-upheld-by-canada-s-top-court-1.2673823) in [Canadian](http://business.financialpost.com/2014/06/13/supreme-court-decision-cheered-by-online-privacy-proponents/?__lsa=0a43-ae1d) papers/[newsites](http://globalnews.ca/video/1393811/supreme-court-rules-in-favour-of-internet-privacy) and associated reader comments proclaiming that the decision was a great victory for privacy and that everyone should rejoice in SCOC’s reaffirmation of the right to it. Now, I am most surely not disappointed by the SCOC’s clear statement that anonymity on the internet is a key element of its use in a free society. My ‘jubilation’ is tempered, though, by the realization that so long as it’s conducted in “good faith”, a violation of that privacy is just fine according to that same Court and the meaning of our Charter. So, a pretty hollow ‘victory for privacy’ IMO. Phrased differently, I don’t see what all the celebration is about. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 14, 2014, 5:52pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/12 "2014-06-14T17:52:32Z")
**Karl** , please see my post # 5. In _this_ case, the Court ruled that the police were acting in good faith, because the law was not clear and they had a reasonable belief that they did not need a warrant. But on a going forward basis, that good faith argument will not be available. The police will know that in this type of case, they will need a warrant. Think of this as a transitional case. The ruling on the need for a warrant will apply generally henceforward. The decision allowing the evidence in, based on good faith, likely only applies to this case. ---
**Author:** ![AdamF](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/adamf/32/6246_2.png) [@AdamF](https://boards.straightdope.com/u/AdamF)\ **Post date:** [June 14, 2014, 6:15pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/13 "2014-06-14T18:15:59Z")
A quote from the [ruling](http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14233/index.do), paragraph 77: > [@](#): > > “Turning first to the seriousness of the state conduct, my view is that it cannot be characterized as constituting either ‘wilful or flagrant disregard of the Charter’. Det. Sgt. Parisien testified that he believed the request to Shaw was authorized by law and that Shaw could consent to provide the information to him. He also testified, however, that he was aware that there were decisions both ways on the issue of whether this was a legally acceptable practice. While I would not want to be understood to be encouraging the police to act without warrants in ‘gray areas’, in light of the fact that the trial judge and three judges of the Court of Appeal concluded that Det. Sgt. Parisien had acted lawfully, his belief was clearly reasonable. In short, **the police were acting by what they reasonably thought were lawful means** to pursue an important law enforcement purpose.” In short, at the time, the police did not know any better.🙂 ---
**Author:** ![AdamF](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/adamf/32/6246_2.png) [@AdamF](https://boards.straightdope.com/u/AdamF)\ **Post date:** [June 14, 2014, 6:18pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/14 "2014-06-14T18:18:45Z")
Northern Piper is correct. And here is the specific quote from the [ruling](http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14233/index.do), paragraph 77 (emphasis mine): > [@](#): > > “Turning first to the seriousness of the state conduct, my view is that it cannot be characterized as constituting either ‘wilful or flagrant disregard of the Charter’. Det. Sgt. Parisien testified that he believed the request to Shaw was authorized by law and that Shaw could consent to provide the information to him. He also testified, however, that he was aware that there were decisions both ways on the issue of whether this was a legally acceptable practice. While I would not want to be understood to be encouraging the police to act without warrants in ‘gray areas’, in light of the fact that the trial judge and three judges of the Court of Appeal concluded that Det. Sgt. Parisien had acted lawfully, his belief was clearly reasonable. In short, **the police were acting by what they reasonably thought were lawful means** to pursue an important law enforcement purpose.” ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [June 14, 2014, 6:55pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/15 "2014-06-14T18:55:51Z")
> [@Northern\_Piper](#): > > The police would be put on notice that in future cases they would need to comply with the new standard. A ruling to admit based on good faith only applies to that first case. This is really the critical point as you have emphasized. But, do you really think that henceforth all searches of the sort discussed in this case will require warrants? More importantly, do you honestly believe that in the future failure to seek/produce a warrant will lead to the evidence’s exclusion? My concern is that there can, and will, be more than one ‘first case’. In other words, different situations, different players, different potential consequences of not conducting ‘the search’, etc., may be held by future courts and judges to justify a warrantless search and/or not to bring the law into disrepute. Yesterday’s judgment notwithstanding, and however they may be rationalized, in the future some warrantless searches are bound to be permitted and their evidence admitted. In fact, you, yourself, seem to be allowing for the same thing to occur in the future: > [@Northern Piper](#): > > Think of this as a transitional case. The ruling on the need for a warrant will apply generally henceforward. The decision allowing the evidence in, based on good faith, likely only applies to this case. (emphasis added) That’s the thing with having anything other than an all or nothing exclusionary principle - you can never be certain if evidence discovered through a warrantless search will, or won’t, be considered admissible. And, of course, that opens up the potential for abuse even if it happens only rarely. In my (admittedly naive) take on this, it’s better to be as clear as possible - nixing any potential for prevarication by the searchers before it can occur. ETA: If a mod sees this, would you please consider moving this thread to **Great Debates**. I think I erred putting my OP in GQ since the discussion really pivots around the desirability (or not) of having an absolute exclusion principle. Thanks! ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [June 14, 2014, 7:57pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/16 "2014-06-14T19:57:29Z")
> [@md2000](#): > > Also, Canada does not have free speech. ( [David Ahenakew - Wikipedia](http://en.wikipedia.org/wiki/David_Ahenakew) ) Ahenakew isn’t a very good example for you. As your link describes, his conviction was overturned on appeal with a new trial ordered, and that retrial resulted in an acquittal. I suppose you could respond that even though Ahenakew’s speech was found not to be inciting hatred, speech that does incite hatred is still criminal and hence Canada does not have free speech. But by this standard no nation has free speech. Even the US has all manner of speech that is either criminal (uttering threats, inciting violence) or actionable on a civil basis (libel and such). That Canada’s legal constraints on the right of free speech are marginally tighter than the US’s doesn’t seem like a very sound basis for making a blanket statement that Canada doesn’t have free speech. Don’t get me wrong, I’d prefer to see the hate speech laws repealed, or at least circumscribed more tightly to inciting actual hateful _actions_. But there’s no need to overstate the case. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [June 14, 2014, 8:08pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/17 "2014-06-14T20:08:21Z")
> [@KarlGauss](#): > > This is really the critical point as you have emphasized. > > But, do you really think that henceforth all searches of the sort discussed in this case will require warrants? More importantly, do you honestly believe that in the future failure to seek/produce a warrant will lead to the evidence’s exclusion? > … But this is the point of the ruling, and the point **Piper** makes. The law was NOT clear; actions both ways had happened in courts, and decisions both ways had been handed down by lesser courts. Canada does not _automatically_ exclude evidence obtained illegally or in questionable circumstances, or in circumstances deemed by later decisions to be illegal. The key test is “does it bring the administration of justice in disrepute?” Asking for an name attached to an IP address without a warrant has so far not been thought to be improper or a violation of rights. Indeed, if/should the same case get to US supreme court, (if it has not already) there might be a guess about which way the justices would rule. So it’s not obvious to the cops or the public that they should not have done what they did. (from now on, it is obvious.) For example, unlike the USA, Canada probably would not let a guy walk after they found 5 pounds of cocaine just because it took an extra 3 hours to call his lawyer, or some such. However, if the location of the drugs was beaten out of him by the cops, they probably would. The first case, not a serious blight on the justice system. The second, I sure hope it’s considered as “bringing the administration of justice into disrepute”. So yes, the next time something “iffy” occurs, the defendant might once again establish a principle but still lose. We haven’t had a ruling, for example, on the equivalent of “Stingray”. US police forces use secret gear to collect a long list of cellphones and their GPS location; in one case, to show the defendant was near the location of each robbery. The argument is kind of odd - the device impersonates a cell phone tower. The feds argue the data is free for collecting by the phone company, therefore you are voluntarily sharing it, therefore they are free to collect it, no different than if you kept tweeting your location to the whole world. Not only that, they are free to do this for hundreds or thousands of cells that wander into range, they argue, to catch one person. So there’s another case where technology needs the court to make a decision. (If unlike in the USA, the feds don’t immediately scream “Top secret, classified, terrorists, terrorists!” and hide all data about the technology). Before the courts decide, the police probably will use it. If they use it to convict someone of speeding, probably the court will also toss out the conviction (if they rule the way I want). If they use it to convict someone of murder, and there’s plenty of other evidence, the court will likely NOT toss the conviction. Basically, an _honest_ small “oops, I didn’t know” by the police in a major case is not a get out of jail free card. Once the police know what the rules are… the free ride does not apply. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 15, 2014, 6:55am UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/18 "2014-06-15T06:55:13Z")
[QUOTE=Karl Gauss] But, do you really think that henceforth all searches of the sort discussed in this case will require warrants? More importantly, do you honestly believe that in the future failure to seek/produce a warrant will lead to the evidence’s exclusion? [/QUOTE] Yes, to both questions. The law is now clear: a warrant is required in these cases. If the police don’t seek a warrant, knowing the state of the law, they aren’t acting in good faith. That will tip the balance to exclusion. That’s how it’s worked in the past, in other cases where there’s been a good faith argument due to uncertainty in the law. [QUOTE=Karl Gauss] however they may be rationalized, in the future some warrantless searches are bound to be permitted and their evidence admitted. [/QUOTE] One general point to bear in mind: s. 8 of the Charter does not require that there always be a warrant. There are certain areas where warrantless searches are not an infringement of s. 8. So yes, in the future, evidence from some warrantless searches will be admitted: but that’s because certain categories of searches do not require a warrant, so the search is constitutional; no need to consider exclusion under s. 24. [QUOTE=Karl Gauss] That’s the thing with having anything other than an all or nothing exclusionary principle - you can never be certain if evidence discovered through a warrantless search will, or won’t, be considered admissible. And, of course, that opens up the potential for abuse even if it happens only rarely. In my (admittedly naive) take on this, it’s better to be as clear as possible - nixing any potential for prevarication by the searchers before it can occur. [/QUOTE] The reason the drafters of the Charter chose a discretionary exclusionary rule was that they felt that an automatic exclusion was too inflexible. The reasoning is that some violations of the Charter are more serious than others, and the courts should have discretion to consider whether to admit the evidence, in spite of the violation. The automatic exclusionary rule in the US has had a lot of critics over the years. For instance, Justice Cardozo famously said: “The criminal is to go free because the constable has blundered.” But, what about the case where the constable has not blundered? The passage from the Court quoted by **AdamF** indicates that the trial judge and the three appellate judges all held that the constable in this case did not need a warrant; the Supreme Court has overruled them. If the exclusionary rule is to keep the police in line when they have breached the constitutional requirements, how can it serve that function in a case where the lower courts have held that the police acted properly, but the Supreme Court retroactively changes the law after the police have acted? It’s important to remember that there are two different things going on in a criminal prosecution where a constitutional issue is raised: first, there is a prosecution brought on behalf of the people, alleging that the individual has committed a criminal offence, and the argument from the accused that his constitutional rights have been infringed. The court hearing the case has a duty to consider both of those important public values: that the public has a right to have allegations of criminal misconduct heard and determined, and the accused has constitutional rights which must be respected. That balancing function leads the court to consider the severity of the constitutional infringement. Where there is an argument that the police acted in good faith, that may tip the balance in favour of admission, because there is no misconduct by the police that needs to be sanctioned. Finally, I think you need to have faith in the ability of the courts to determine when there has been intentional abuse by the police. That’s what the courts do every day: consider the motivations of people appearing before them. This is simply a specific example of that duty of the courts. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [June 15, 2014, 7:03am UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/19 "2014-06-15T07:03:45Z")
It just occurred to me that it may be helpful to quote the wording of the exclusionary rule, found in s. 24 of the Charter: [QUOTE=Canadian Charter of Rights and Freedoms] \*\*Enforcement of guaranteed rights and freedoms 24.\*\* (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. **Exclusion of evidence bringing administration of justice into disrepute** (2) 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. [/QUOTE] S. 24(2) is the provision in issue. Its reference to bringing the “administration of justice into disrepute” is meant to give the courts the duty to consider the overall effect of admitting or excluding the evidence, taking into account both the impact on the accused, and the overall reputation of the administration of justice, if a criminal prosecution is short-circuited by the exclusion of relevant evidence. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [June 15, 2014, 2:52pm UTC](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725/20 "2014-06-15T14:52:46Z")
For an excellent explanation of s. 24 (1) and (2) of the _Canadian Charter of Rights and Freedoms_, read through [a judges’ school paper](http://canlii.ca/t/t32ks5) by someone who is a retired provincial Chief Justice and who heads a province’s civilian commission that oversees police conduct. > [@](#): > > [1] Section 24(2) of the Canadian Charter of Rights and Freedoms directs courts to exclude unconstitutionally obtained evidence where, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. This exclusionary authority was born of the recognition that sometimes evidence and convictions can come at too high a cost to the fairness and integrity of the criminal justice system. Section 24(2) modifies, but does not completely erase the common law, which would admit virtually all reliable relevant evidence regardless of how it was obtained.[1] It does not provide for the exclusion of all unconstitutionally obtained evidence. In fact, such evidence remains presumptively admissible. Section 24(2) only mandates exclusion where, after considering all the circumstances, the court concludes that admission of the evidence would bring the administration of justice into disrepute. > > Purpose of s. 24(2) > > [2] The purpose of s. 24(2) is to maintain the rule of law and the values underlying the charter. It is not meant to punish police misconduct or to compensate an accused for violation of his or her rights. The objective of s. 24(2) is systemic. Its focus is long term, prospective and societal.[2] The concern is less with the particular case than on the impact over time of admitting evidence obtained by infringing constitutionally protected rights.[3] > > . . . . > > Requirements for Exclusion > > [10] Lamer J., in Collins[21] and again in R. v. Manninen,[22] identified three prerequisites for the exclusion of evidence under s. 24(2). First, the applicant’s rights or freedoms guaranteed by the charter must have been infringed or denied. Second, the evidence in question must have been obtained in a manner that infringed or denied that right or freedom. Third, the circumstances must be such that admission of the evidence could bring the administration of justice into disrepute. Unless all three of those conditions are present, the evidence cannot be excluded under s. 24(2). However, evidence that does not meet the requirements under s. 24(2) may nevertheless be excluded by operation of the common law or through s. 24(1) if its admission at trial would impair a legal right set out in the charter.[23] On the other hand, if all three conditions are present, the wording of s. 24(2) would seem to preclude any other option but exclusion. Subsection 24(2) directs that the court “shall” exclude the evidence when the conditions precedent are met. This does not mean there are no discretionary elements in an s. 24(2) analysis.[24] Courts must exercise considerable judgment in deciding whether admission of the evidence in question could bring the administration of justice into disrepute. [Next page](https://boards.straightdope.com/t/unconstitutional-yes-it-is-but-who-cares-its-irrelevant-because-the-police-acted-reasonably/690725.md?page=2)