Police Intentions and the Exclusion of Evidence



Benjamin Goold for The Lawyers Weekly

April 16, 2010

Should the courts consider the intentions of the police when deciding whether to admit evidence obtained in breach of a Charter right?

Covert police investigations inevitably raise difficult questions about the limits of individual privacy. Although intercepting suspects' private telephone conversations or placing a listening device in their homes are clear violations of the right to privacy under the Charter, most of us accept that such infringements can be justified provided they are carried out for a limited purpose and subject to strict judicial oversight. Equally, when the police stumble across evidence of some unexpected crime during the course of an authorised surveillance operation, the courts have often taken a flexible approach to the admission of such evidence.

On its face, the recent decision of the Supreme Court in R v. Beaulieu, [2010] S.C.J. No. 7 appears to be in keeping with the commitment to protecting the Charter rights of suspects while also acknowledging the importance and challenges of covert policing.

While attempting to install a listening device in Beaulieu's car, police officers discovered a hidden compartment containing a loaded firearm. In an effort to avoid endangering their ongoing investigation, the police stopped installing the device, disabled the firearm, and then placed it back in the car. One year later, Beaulieu was charged with possession of a loaded prohibited firearm contrary to s. 95 of the Criminal Code.

At trial, the judge concluded that because the search that led to the discovery of the firearm was not carried out "for the purposes of installing the device, ensuring their safety or protecting their investigative technique," it exceeded the scope of the judicial authorization and constituted a violation of Beaulieu's privacy rights under s. 8 of the Charter. The judge did not, however, exclude the evidence under s. 24(2).

According to the judge, the fact that the police officers did not believe that they were exceeding the powers granted to them under the authorization and had not shown a "flagrant disregard" for Beaulieu's Charter rights weighed strongly in favour of admitting the evidence. As a result, the accused was convicted of the offence of possession.

The conviction was, however, later quashed by the Quebec Court of Appeal, which held that the trial judge had erred in her consideration of the issues under s. 24(2) and that the breach of the Charter in this case was sufficiently serious to justify excluding the evidence. But in setting aside the decision of the Court of Appeal and restoring the conviction, the Supreme Court concluded that the findings of the trial judge were not unreasonable and that she had considered the proper factors under s. 24(2) when deciding whether admitting the evidence would "bring the administration of justice into disrepute."

Although this conclusion is hardly surprising in light of the decision in R. v. Grant, [2009] S.C.J. 32, it can also be seen as yet more evidence of a growing willingness on the part of the court to take the intentions and beliefs of the police into account when assessing their conduct and determining the legality of their actions. For the majority in Grant, the fact that the Charter-infringing conduct of the police was "neither deliberate nor egregious" was of considerable importance, as was the fact that they were "operating in circumstances of considerable legal uncertainty." This view was echoed by Justice Binnie who - despite being in the minority in Grant - also argued "police words and conduct should be interpreted in light of the purpose of the encounter from the police perspective" [emphasis in the original].

Although it is entirely sensible for a court to take a broad view when deciding whether to admit evidence obtained in violation of a Charter right, there are also good reasons to be cautious when it comes to considering the intentions and beliefs of the police. Aside from the fact that there is a wealth of criminological evidence to suggest that the police are extremely adept at justifying their behaviour and the exercise of their powers after the fact, insisting on close adherence to principles of evidence and judicial authorisations helps to ensure that the police take Charter rights seriously. Clear rules of admissibility play a crucial role in shaping institutional cultures and promoting respect for due process within police organisations and the wider criminal justice system.

If the police come to believe - rightly or wrongly - that judges will not exclude evidence under s. 24(2) so long as it can be shown that the officers acted in good faith and with "regard" for the Charter, then they may be less concerned about infringing Charter rights in the future. There is a danger that one of the key sanctions under the Charter - the ability of courts to exclude evidence obtained in violation of a right - may be fundamentally weakened, and with it the status of Charter rights more generally. It is for these reasons that courts need to be careful when employing the language found in Beaulieu and Grant, and must guard against giving the police the false impression that intentions are more important than actions or consequences when it comes to respect for suspects' rights.

Benjamin Goold is a professor at the University of British Columbia Faculty of Law. In addition to his interest in criminal law and procedure, he also writes on police surveillance, privacy law, and the relationship between security and human rights.

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