I’m sorry if I am not getting it. How does this differ from the US good faith exception to the exclusionary rule?
Until a lawyer/knowledgeable person arrives, may I guess? Is it because the US rule is based on the use of a defective warrant, i.e. there was a warrant, albeit inappropriate or defective in some way, whereas in Canada even if no warrant is used it may still be kosher?
Well, IANAL but let me make a layman’s observation that I think is valid. There is a philosophical difference between American and Canadian views of constitutional rights, where the American view tends toward absolutism and the Canadian one toward balancing individual rights against the broader public interest, a principle that the Charter itself enumerates in Section 1. Thus, the Canadian Charter guarantees free speech but that’s not considered inconsistent with having a specific prohibition against hate speech, which in the US would be considered a violation of the First Amendment.
It’s in that spirit that the admissibility of evidence in a Canadian court appears to depend on a holistic view of all the circumstances of the case, and why although the OP complains of a conviction upheld despite the questionable legality of the evidence, the Harrison case that I cited at the end of post #28 reached the opposite conclusion. If you read the cited judgment for that case, it’s clear that the court was weighing the severity of the crime against the egregiousness of the police officer’s actions. So yes, I believe your statement is correct, and basically in Canada it’s harder to get evidence for a serious crime thrown out on a technicality. Indeed in the Harrison case an Ontario appellate court had already ruled the evidence admissible, but the SCC disagreed in a split decision (well, one dissent, anyway).
As I mentioned, I think the Harrison case the SC considered the overall effect of the ruling standing; if a policeman can make up whatever excuse he wants and base a search on that - then it would be open season on car searches. Innocent drivers would really have no way to complain, since they would simply be complaining to a police department that already decided unreasonable searches were OK and allows them, since whatever they did find would be nevertheless be admissible. Drivers found with contraband would not have that evidence excluded. What recourse does an innocent driver have? They can’t really sue the police department, the only real damage is time wasted and privacy invaded.
So the appeal courts were probably looking at the effect on the reputation of justice of tossing a 55-lb stash of drugs; the supreme court was looking at the long term effect of allowing evidence from bogus searches, conducted on a whim, being valid evidence.
The key in the two cases seems to be police motivation - if the police will deliberately violated charter rights on the assumption they could still use any evidence found, that has serious long-term effects on how rights are protected. If police did not know the rules because they were not clear, clarifying them protects future suspects but allowing the evidence also ensures a person does not “walk on a technicality” that the police could not know about ahead of time.
This. The good faith exception applies to an officer’s reliance on a facially valid but factually defective warrant. Basically, the idea is that the police should be able to rely on the issuing judge/magistrate’s legal conclusion; if a judge doesn’t see that the warrant is defective, the cops can’t be expected to.
The principle in this case is the same, but the scope is not currently permissible under US law.
Yes, my understanding is that the US good faith exemption only applies when the police have sought a warrant, but the warrant is defective in some way:
The Canadian good faith approach is broader, as shown by this case, where the police did not seek a warrant.
[QUOTE=Northern Piper]
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, I recently came across a case decided by the SCC after this thread which illustrates this point: the courts will exclude evidence when there has been a failure to follow well-established rules under the Charter: R. v. Taylor.
Taylor was driving a car and was in an accident, injuring his three passengers, one of them seriously. The police arrested him and gave him his counsel warning, then took him to a hospital to have him checked out in case he was injured. While he was in the hospital, blood samples were taken, some for medical reasons, and one sample under a police demand under the Criminal Code.
However, throughout the time he was in the hospital, the police did not take any steps to let him call a lawyer, as is required once the counsel warning has been given. The SCC held over 20 years ago that the police have a constitutional duty to facilitate a detainee’s right to contact a lawyer, once the counsel warning is given. The police said they just forgot to do so.
The SCC excluded the blood samples. In a unanimous decision the Court said that the principle that the police must facilitate access to counsel has been clearly established by the SCC’s decisions, dating back to the mid-90s. While an individual may not be able to access counsel at roadside, once the situation is stable and telephone access is available, the police have to facilitate a call to the lawyer.
Since that principle has been so well established by the SCC for 20 years, the Court held that the evidence should be excluded under s. 24. The police erred in not providing access to counsel:
[QUOTE=Justice Abella]
This brings us to the seriousness of the Charter -infringing state conduct. The record indicates that the s. 10 (b) breach was not the result of a wilful disregard for Mr. Taylor’s rights. Nevertheless, Cst. MacGillivray’s failure to facilitate Mr. Taylor’s s. 10 (b) rights constituted a significant departure from the standard of conduct expected of police officers and cannot be condoned.
[/QUOTE]
I think that this case responds to your concern, Karl. The case we discussed in this thread was one of first impression, the first time the courts had to consider whether a warrant was needed to get IP information. In the circumstances, since the law was uncertain, the SCC held that the evidence could be admitted.
By contrast, the principle of the right to counsel, and the duty of the police to facilitate access to counsel, has been well-established for 20 years. The police are expected to know that law, and to follow it. Failure to do so means the evidence will be excluded.
So, in answer to your question, quoted above, yes, I do believe that if the police in a future case don’t seek a warrant to get an IP address, the evidence will be excluded. Taylor demonstrates that once the law is clearly set out by the courts, the police are required to follow it and cannot rely on any type of good faith argument. Good faith only applies when the Charter principles are uncertain. Once the Charter principles are well-established, the police must follow them.
Thank you for this follow up, Piper.
Indeed, it is reassuring. It seems that at least this one time, we will “have the criminal go free because the constable has erred”. You’ll get no argument from me on that.
Some days you’re glad of a zombie.
Does this due diligence defense also extend to matters of fact, as well as law? For example, if a minor with a fake ID seduced an adult, could the adult go free if they checked the ID and were honestly fooled by it?
Having reread this, and recognizing that I may be parsing things too finely, it does strike me as ‘interesting’ that Justice Abella opted to use the verb “expected” and not “required”. This could suggest that SCOC is leaving wiggle room for the next such violation.
Potentially, yes, it could be a defence. Section 150.1 of the Code provides, with respect to sexual offences with an underage person:
A mistake about age is thus a defence, provided the accused “took all reasonable steps” to figure out the other person’s age.
Now, that’s a question of fact for the jury (or judge, sitting alone), so whether the ID defence would be accepted would depend on its believability, in the circumstances of the particular case.
Not meant as legal advice, of course, but simply to comment on the general principles of the law in an area of public interest.
I think you’re parsing too finely, Karl. She follows up with “cannot be condoned,” which is pretty firm. Our Supreme Court tends to use, shall I say, gentler, language than their brethren down south.