© 2008  Karen Selick

An edited version of this article first appeared in the May 15, 2008 issue of the National Post.
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Excluding Evidence Doesn't Make for Better Policing


What should the courts do when police officers violate a suspect’s rights under the Charter of Rights and Freedoms--keep the resulting evidence out of court and risk letting a criminal walk free?  Or admit the evidence and risk signaling to police that it’s perfectly okay to trample suspects’ rights in future?

The Charter itself says such evidence must be excluded if admitting it “would bring the administration of justice into disrepute.” 

This seems to me like a reasonable rule, and in many cases its outcome would be obvious. A confession obtained by torture, for instance, would almost never be admitted—first, because such confessions are notoriously unreliable, and second, because brutality transforms law enforcement agents into criminals themselves. Both factors would undermine public confidence in the justice system.

But a mindset seems to have developed among many criminal defence lawyers that Canada should follow in the footsteps of the United States, where since 1961 all civil rights infringements, no matter how slight, have resulted in the exclusion of tainted evidence, no matter how reliable or persuasive.  Canada has already been heading in that direction.

That’s why so many lawyers are nervous about the appeal heard by the Supreme Court of Canada on April 24.  One even described the case as “scary stuff” that could “turn back the clock to the bad old days before we had any real rights.”

The 18-year-old accused, Donnohue Grant, had been confronted by three police officers on a Toronto street in daylight and asked whether “he had anything on him that he shouldn’t.”  He admitted first having some marijuana, then a gun. Police arrested and searched him, seizing the drug and a loaded revolver. At trial, he was sentenced to 18 months’ imprisonment.

The Ontario Court of Appeal held that police had indeed infringed Grant’s right not to be arbitrarily detained—but not sufficiently to defame the justice system. The gun had been properly admitted into evidence, and the conviction stood. Grant appealed again. Now the Supreme Court will decide.  

I’m as mistrustful of excessive police power as the next person—probably more so—but the necessity of throwing out evidence in every case of police misconduct escapes me. I see no inexorable link.

Apparently, the theory is that punishing police officers by throwing their work away will make them mend their ways. But how punitive is that for the errant cop?  He still gets his pay cheque. There are better ways of punishing police misconduct—ways that are far more likely to get a rogue officer’s personal attention. Victims of police misconduct can and occasionally do charge the officers with criminal offences, or sue them personally in civil actions, along with the police forces that employ them.

I’ll bet that fear of demotion, dismissal, imprisonment or civil liability have prevented much more misconduct than fear of seeing your work thrown away ever did.

The real punishment inflicted by a strict exclusionary rule falls upon the innocent members of society—the future victims of genuine criminals who escape conviction and are out on the streets to transgress again.

Suppose, for instance, that police officers investigating a recent murder enter someone’s home without a warrant. They find a suspect wearing a bloody shirt, and cash belonging to the victim stashed under the suspect’s mattress.  When the courts toss out such evidence—as the Supreme Court did in the 1997 case R. v. Feeney—the public feared, justifiably, that a murderer might go scot-free. There was considerable outcry. Fortunately, at Feeney’s second trial, there was still enough untainted evidence, even without the bloody shirt and stolen cash, to put him behind bars.

But that’s not always the case. According to former U.S. attorney general Edwin Meese, the strict U.S. rule means that “150,000 criminal cases, including 30,000 cases of violence, are dropped or dismissed every year because the exclusionary rule excluded valid, probative evidence needed for prosecution.”

Comparisons over time cast doubt on the theory that the exclusionary rule makes officers significantly more rights-respecting. Pre-Charter Canada was not, at least in my recollection, more of a police state than it is today. And the U.S. statistics demonstrate that despite the strict exclusionary rule, cops apparently keep infringing suspects’ rights in significant numbers.

The one thing nobody else seems to have noticed is that the “crimes” Donnohue Grant was committing when confronted by police—possessing marijuana and possessing a handgun—were both victimless crimes. There was no evidence that he ever had, or would, hurt anyone.  In a truly free society, Grant would have been able to tell police what he was carrying and walk away a free man.

But in a society where merely possessing something is illegal—where no aggressive action is required in order to commit a crime—it’s inevitable that police officers will conduct searches and make detentions they can’t justify on any reasonable grounds. How else can you detect victimless crimes, since by definition there will be no-one complaining about them?

This is just another example of how bad laws beget more bad laws. We create the conditions that encourage police overzealousness, then find ourselves being urged to adopt more bad policy—the strict exclusionary rule of evidence—to counteract the damage we have done.

The courts should resist the pressure to adopt the strict exclusionary rule, and the legislature should repeal the victimless crime laws that give rise to the pressure.


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       October 21, 2008