Police Search Powers and the Admission of Evidence (Privacy and Peril) - Thomas Mooney

Understanding how a society responds to a breach of an individual’s rights gives profound insight to how that society regards the rights of all individuals. Determining a breach of an individual’s section 8 rights is clearly denoted as a balancing act between the privacy interests of the individual and the needs of the state; the balance of these factors, as it sits at present, gives little significance to the breach of a section 8 right alone. In a number of cases, the Court’s determination on whether a search was in violation of section 8 pivoted on the conduct and motivation of the officers rather than the prima facie heightened privacy interests of the individual. Through an examination of the cases of R v Stillman, R v Golden, and R v Saeed, we will see the Court’s preference and reliance on the mechanisms through which Charter breaches occur. Additionally, we will see how the Court is open to permit Charter breaches, under nearly all levels of privacy, in the right circumstances. Finally, we will consider how this overreliance on the mechanism of a Charter breach contributes to a legal system that devalues Charter rights and holds a Charter breach alone unworthy of punishment.

In Saeed, the court had to deal with a suspected case of sexual assault. The police apprehended a suspect and reasoned that if this was the perpetrator of the offence, then DNA evidence may still have been present on his genitalia.[1] To recover the evidence, the police decided to undertake a swab of the suspect’s genitalia; the suspect was given the opportunity to conduct this himself. The police did not seek a search warrant prior to conducting the search.[2] When the case arrived at the SCC, the Court found that the police were justified in the search and did not infringe Saeed’s Charter rights. However, the dissenting opinions in this case are highly illuminating. Justice Karakatsanis took the position that there was in fact a breach of the defendant’s section 8 Charter rights.[3] It seemed logical on its face that a person has a high level of privacy interest in their genitalia and evidence extracted from those areas. The fact that the Court found the warrantless search justified, even in the face of a search of such an intimate place of privacy, demonstrates that the Court views the mechanisms by which a search is conducted (and potentially a Charter right infringement) as far more important to determining the scope of that Charter right than the privacy interests of the individual. As evidence for, and in management of, this reliance on the mechanism of the search over its effects on the individual’s liberty, the Court has had to list a variety of requirements determining acceptable conduct in conducting warrantless searches. The Court does this despite the clear and obvious solution being to enforce the requirement to seek judicial approval prior to conducting a search where there is a high level of privacy concern. Rather than looking at the mechanism by which a Charter right has been breached, the Court should give greater emphasis to the effects of the breach on the individual. In this case, an individual, detained by the state, had one of the most intimate areas of the human body undergo a search without a warrant and, as a result, received a significant loss of liberty. When the risks to individual rights such as liberty, supposedly protected by the Charter, are so high, the Court should not continuously attempt to find ways to allow the state to circumvent mechanisms of protecting the populace from unreasonable state intrusion.

In the older case of R. v. Stillman, discussed by the Court prior to Saeed, the Court demonstrates its reliance on conduct as the determining factor in the existence of section 8 rights, even in cases where they find a breach has occurred. In an attempt to gather evidence, the police in Stillman forcibly removed hair samples, dental impressions, and received a DNA sample from a tissue the accused had used.[4] The police did this without a warrant. After arriving at the SCC, the search was determined to be a breach of Stillman’s section 8 Charter rights. A key factor the Court outlined in its findings was the absence of exigent circumstances to the search.[5] There was no reason for expediency in violating the defendant’s privacy interest in their own body. Even though this case was decided prior to Saeed and in the opposite way, it demonstrates all the same components of profound concern to the manner in which the right was breached, rather than the breach itself. The image these cases paint is one of a Court system that is tolerant of warrantless breaches at any level of privacy interest, provided that the circumstances of the police are sufficiently benign. Even in cases where police conduct is seen as sufficient to justify an unwarranted search, the Court may well outline a long and detailed list of how the police can conduct a search in such a benign manner as to make the warrantless search fit into one of the narrow exemptions to the requirement that a judicial warrant be obtained for a search of a private area.[6]

With such emphasis from the Court on how the breach has occurred, this begs the question: where does the state and the Court view the harm of a search occurring, unconstitutional or otherwise? From the rhetoric in Saeed as well as Stillman, it would appear the Court perceives the harm of an unconstitutional search to be in the mechanism of that search. In the case of Golden, it was in the pain and humiliation of having a strip search conducted in a public restaurant.[7] Whilst that is undeniably true, it can be reasonably argued that the greater harm is the potential loss of liberty faced by the accused. The loss of one’s liberty, stemming from an unconstitutional intrusion into their privacy by the state, inflicts far more substantial and long-lasting harm to an individual and Canadian society than any individual act of physical violation. For this reason, the Supreme Court should start viewing the violation of a Charter right on its own as more of a substantial barrier to overcome for the state. It should do this by restricting opportunities that state actors, specifically law enforcement, have to conduct searches without the protection of judicial preauthorization to only circumstances where judicial authorization is a practical impossibility. This is of paramount importance as, in circumstances where a judicial warrant is not received prior to the search, judicial review will only occur if the search yields evidence and a crime is prosecuted. Absent the production of evidence, police breaches of Charter rights will go on monitored.[8]

Section 24(2) is perhaps one of the most blatant examples of this overreliance on conduct in determining constitutional issues. This entire section demonstrates that the Court’s overemphasis on the mechanism of a Charter breach has informed the mindset that a Charter breach alone, whilst bad, is not any type of significant barrier to the government introducing unconstitutionally gathered evidence.[9] This section prescribes that “evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”[10] The test the Court outlined in Grant for assessing whether the inclusion of evidence will bring the administration of justice into disrepute requires consideration of the following: the severity of the Charter infringing state conduct; the effect that conduct had on the right protected; and the public interest in seeing the case prosecuted on its merits.[11] In this analysis, each step is entirely focused on the conduct of those involved and ultimately makes a rather cynical point around the breach of Charter rights. Put simply, this section prescribes that, if the Court determines that the Charter breaching conduct is so benign that people would not think lesser of the Court system for admitting the evidence, then the evidence can still be admitted. Further to this point, the Court has demonstrated in cases like Grant, Lee, and Harrison that they are only willing to exempt evidence in cases where the police conduct is truly egregious and made with full knowledge that it is unconstitutional.[12] Ultimately, this shows that, from the interpretation relying on the mechanisms of the police action to determine if a Charter breach has taken place to the significant role the severity of the state actions play in the admission of evidence, the Court does not view Charter rights, and specifically section 8, as being worthy of condemnation or protection when they are breached. Only when the breach of the Charter right is precipitated by conduct or a mechanism that is particularly shocking will the Court sanction the breach of the Charter right. It is unfortunate that the battle for individual rights is frequently fought on the battleground of some of humanity’s most egregious behaviour, which can result in a tendency to limit rights in a bid to seek justice. In Canada, there exists a distinct emphasis on developing workarounds that authorities can use to aggressively neutralize what protections exist and less emphasis on defending, reaffirming, and developing individual protections against state intrusion. A positive step toward betterment of the legal system and the idea of state accountability would be to begin curtailing the opportunities police forces have to conduct warrantless searches and to look toward jurisdictions that take a more stringent view on rights violations as a standalone reason for exclusion of evidence.

[1] Richard Jochelson & David Ireland, Privacy in Peril (Vancouver: UBC Press, 2019) at 124. [2] Ibid. [3] Ibid at 127. [4] Ibid at 109. [5] Ibid at 110. [6] Ibid at 113. [7] Ibid at 112. [8] Ibid at 128 [9] Ibid at 138 [10] Canadian charter of rights and freedoms, s 24(2), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [11] R v Grant, 2009 SCC 32 at para 71 [Grant]. [12] Ibid at para 75; R v Le, 2019 SCC 34 at para 143; R v Harrison, 2009 SCC 34 at para 39.