Deterrence Under Section 24(2) of the Charter - Julian Brown

Nearly 700 years ago, the Spanish inquisitor Eymericus wrote in his interrogation manual: “Non refert quomodo veritas habeatur, dummodo habeatur,” which translates to “it does not matter by which methods truth has been obtained so long as it has been obtained.”[1] This blog post will explore whether these words ring true today, or if developments in Canadian law such as section 24(2) of the Charter have a meaningful deterrent effect on police officers. This post is inspired by a recent case from Brandon, MB, where police infringed the rights of an accused and illegally obtained evidence that was later excluded under s. 24(2). I will begin with a brief overview of that case, followed by an exploration of why some scholars believe that deterrence is ineffective, and finally, I will provide an analysis and alternative perspective on s. 24(2) deterrence.

R. v. Clearsky

In R. v. Clearsky, the Organized Crime Unit of the Brandon Police Service (“BPS”) received a tip from an informant on August 13, 2018, which noted that the accused, Ms. Clearsky, planned on transporting multiple ounces of cocaine from Winnipeg to Brandon.[2] Cst. Russill of the BPS arrested the accused at 16:14 hours and advised her that it was for trafficking in cocaine. Ms. Clearsky was removed from the vehicle, placed in handcuffs, and instructed to stand on the side of the road. At the time of the arrest, Cst. Russill was not carrying his notebook that contained the Charter warning and police caution script. He waited until 16:22 to retrieve the notebook from his police car, which meant that Ms. Clearsky was under arrest for 8 minutes without having been read her right to counsel as per s. 10(b) of the Charter and her right to silence under s. 7 of the Charter. Prior to having been read her rights, Ms. Clearsky volunteered that there were drugs in the backseat of her vehicle. Cst. Russill testified that he was aware of the accused’s rights and delayed the provision of notice of those rights. He did so because he prioritized other events, such as cuffing her, conducting a cursory search, calling for other units, and calling for a tow truck. After going through the Grant test, Abel J. concluded that Cst. Russill’s conduct amounted to a serious breach of the Charter. To avoid the administration of justice from falling into disrepute, Abel J. excluded Ms. Clearsky’s inculpatory statement from evidence along with the cocaine that was found in her vehicle.[3]

Why Deterrence Is Ineffective: Steven Penney’s View

The Supreme Court of Canada (“SCC”) has stated that s. 24(2) of the Charter should not be considered a remedy for police misconduct, but rather, as a deterrent.[4] However, as R. v. Clearsky demonstrates, the presence of s. 24(2) does not necessarily have a definitive deterrent effect on police officers. Cst. Russill, for example, was aware of his duty to administer justice, yet prioritized his administrative duties instead. Steven Penney, in his article titled “Taking Deterrence Seriously: Excluding Unconstitutionally Obtained Evidence Under Section 24(2) of the Charter,” recognizes an informational deficit and unfavourable cost-benefit calculations as being the two main barriers obstructing effective deterrence. He writes that:

[P]olice are frequently unaware of the complex and ever-changing constitutional law regulating their investigative efforts; are not informed of the suppression of evidence that they have collected; fail to understand the reason for exclusion when informed of it; and/or perceive that their interests are better served by non-compliance than by compliance, even when they know that non-compliance may result in evidentiary exclusion.[5]

Other scholars, such as Michael D. Cicchini, further the economic component of Penny’s argument by noting that an officer is incentivized to make arrests, not to obtain convictions.[6] If the evidence seized during an arrest is later excluded under s. 24(2), the officer may hardly notice or care. Section 24(2) therefore appears not to have a strong enough deterrent effect.

However, Penny notes that alternative deterrence mechanisms meant to increase the deterrent effect ultimately fail because they lead to over-deterrence.[7] For instance, if officers could be sued in a civil court for infringing an accused’s Charter rights, they may elect to forgo collecting evidence that they otherwise may have been legally allowed to obtain. In other words, police officers might freeze when faced with legal uncertainty. Officers must often do their work under conditions of legal uncertainty, which means that the police force would be less effective if officers were preoccupied with getting sued. Even the most well-intentioned officers may be over-deterred in the face of such uncertainty.

The Honourable Judge Cornick, who spent many years as a drug prosecutor before becoming a provincial court judge, recently explained to me that it is not the exclusion of evidence under s. 24(2) that has a deterrent effect on police officers. A prosecutor might take a matter to court notwithstanding s. 24(2) because they believe that they can argue their way through it. When this happens, it is not the police who feel the pinch, but rather the prosecutor. If the court finds that the evidence is unacceptable, the police conduct was abhorrent, and that the evidence ought to be excluded despite the Grant test, it is the prosecutor standing in front of the judge who will feel the pinch of that decision.

Police only start to feel the pressure when and if the prosecutor returns to the police to instruct them. If the prosecutor does not instruct the police, then Penney’s point about an informational deficit may be accurate. However, the police do feel a real deterrent effect if, prior to the trial stage, a prosecutor refuses to take evidence to court and explains to the officers the reason for that decision. This is where an educational responsibility component comes into play. An educated Crown attorney exercises a pseudo-judicial function when they inform the police that evidence will not be submitted and that an error has been made. The Crown has this obligation to engage with the police, and ultimately, the police feel the sting when a prosecutor refuses to put the evidence in, despite whatever hard work those officers may have done to obtain it.

The broad debate surrounding deterrence must be considered in the unique Canadian context. In Canada, Crown prosecutors are not elected—they are public servants. This is quite different from the United States, where the equivalent of a Crown prosecutor, the district attorney, is elected and portrayed in the media as being susceptible to political interests. In Canada, a Crown prosecutor’s job is to only submit cases that have a public interest in moving forward and can realistically be proven. The Crown will never announce that it is not proceeding with a case because the evidence was collected in an illegitimate manner. Behind the scenes, however, those prosecutors are often educating police on where they went wrong and why the evidence will not be submitted. This aspect is not public and may skew citizens’ impressions of the justice system.

For the most part, police officers are professionals who occasionally make mistakes. In the heat of the moment, police are placed in uncertain positions where they must make split-second decisions and then create notes regarding those decisions. This information is later scrutinized by several lawyers and a judge, who look at that narrow increment in time and parse it for hours. According to Judge Cornick, some trials last for weeks over a single hour of police interaction that is sliced into the thinnest fragments of time. Plenty of actions that someone takes in real life, parsed out that thinly, could be made to look abhorrent.

Conclusion

The arguments put forward by Penney and Cicchini seem to reflect an overly skeptical view of human nature and police conduct and fail to take into consideration the quasi-judicial role of the Crown prosecutor in the Canadian context. Thus, it is not the exclusion of evidence under s. 24(2) that has a deterrent effect on police officers. Rather, it is the relationship between the Crown prosecutor and the police that has a deterrent effect. Police officers feel the sting when a Crown prosecutor either does not submit evidence and instructs the police, or when evidence is excluded at trial and the prosecutor returns to inform the police of that fact. In the Canadian context, the words of Eymericus certainly do not ring true today. It does matter by which methods the truth has been obtained, and prosecutors will be sure to remind the police of that.

[1] Paul Marcus, "The Exclusion of Evidence in the United States" (1990) 38: Am J Comp Law 595 at 610. [2]R v Clearsky, 2021 MBQB 236 [Clearsky]. [3]Ibid at 103. [4]R v Collins, [1987] 1 SCR 265 at paras 260-81. [5] Steven M Penney, “Taking Deterrence Seriously: Excluding Unconstitutionally Obtained Evidence Under Section 24(2) of the Charter” (2004) 49:1 McGill LJ 105 at 114. [6] Michael D Cicchini, “Economics Perspective on the Exclusionary Rule and Deterrence, An” (2010) 75:2 Mo L Rev at 421. [7]Penney, supra note 5 at 121.