Conscriptive Evidence, Real Evidence, Good Faith, Bad Faith – What does it all mean?
On July 17, 2009, the Supreme Court released R. v. Grant and three other companion cases, reformulating how courts ought to deal with evidence obtained in breach of the Charter. A fulsome reconsideration of this important issue has been long overdue in the wake of confusion arising from the Court's last major treatise on the subject in1997, R. v. Stillman. As the Chief Justice and Justice Charron noted in Grant, "existing jurisprudence on the...exclusion of evidence is difficult to apply and may lead to unsatisfactory results." [ 1]
In Stillman, Justice Cory, writing for the majority, held that when the accused is compelled to participate in the creation or discovery of evidence by way of a Charter breach, use of that "conscriptive" evidence by the prosecution would generally render the trial unfair, unless the Crown could prove on a balance of probabilities that the evidence was discoverable by alternate, "non-conscriptive" means. Conscriptive evidence could include a statement, but also "real" evidence discovered as a result of the statement. This sort of evidence came to be known as "derivative" evidence.
Deeply influenced by the common law cultural norm that an accused ought not to be compelled in the production of evidence against himself, Justice Cory decided that it would generally not be possible to have a fair trial based on conscriptive evidence derived from a Charter breach. Such evidence generally ought to be excluded, he wrote, without considering the other two factors under s.24(2): the seriousness of the Charter breach and the effect of the exclusion of the evidence on the administration of justice, for a conviction derived from an unfair trial would by definition bring the administration of justice into disrepute.
It is clear upon a close reading of Justice Cory's reasons that he did not mean to class evidence into categories to which rote formulae ought to be applied, but this was Stillman's unfortunate legacy. Foreshadowing the decision she was to co-author twelve years later in Grant, the Chief Justice dissented in Stillman, cautioning that an automatic exclusionary rule for evidence affecting trial fairness should be resisted. Such a rule ran contrary to the wording of 24(2), she wrote, which requires judges to balance all of the factors which may affect the repute of the administration of justice, trial fairness being but one. The correct approach was broadly contextual. Interestingly, she was also of the view that an approach which equated any non-consensual participation of the accused with trial unfairness was to raise the right against self incrimination to loftier heights than it rightfully deserved. Trial fairness was but one factor among many, she explained, and all the factors needed to be weighed, without one being a trump to the others. In light of this reasoning, the Chief Justice and Justice Charron's approach in Grant ought not to be a surprise. [ 2]
Grant, "a young black man," [ 3] was stopped by police late one fall afternoon as he walked through a Toronto neighbourhood. Four schools in the area had a recent history of student assaults, robberies and drug offences occurring over the lunch hour. The three officers who stopped Grant had been detailed to the neighbourhood because of these incidents. They spoke to Grant who, as a result of his interaction with the police, ultimately handed over a loaded revolver he was carrying in his knapsack.
While not making any findings of bad faith on the part of the police, the Court decided that Grant had been arbitrarily detained, and his right to counsel violated. The revolver, which would not have been discovered "but for" the Charter violations, was therefore derivative conscriptive evidence. On the Stillman analysis, the gun ought to have been excluded because of the purported impact of its admission on trial fairness.
However, the Court unanimously ruled that the revolver ought to be admitted on the basis of a restatement of the law on s.24(2). Closely tracking the Chief Justice's dissent in Stillman, the majority completely re-worked the test for the admission of evidence obtained in breach of the Charter, [ 4] stating that, "it is difficult to reconcile trial fairness as a multifaceted and contextual concept with a near automatic presumption that admission of a broad class of evidence will render a trial unfair." Rather, courts ought to consider the long term impact of the admission of the evidence on the good repute of the administration of justice in light of three factors: (1) the seriousness of the Charter infringing state conduct; (2) the impact of the Charter breach on the accused; and (3) society's interest in the adjudication of the case on its merits. These three factors are to be weighed equally in light of all of the circumstances of the case.
Although in both Stillman and Grant, the Chief Justice favoured the state in the result, both decisions are deeply progressive and ought to be celebrated by those who favour civil liberties. The approach described in both cases requires a broad consideration of all of the facts of the case and soundly rejects a formulaic application of calcified legal principles. The majority is careful to note that admitting the revolver in Grant was a "close case," and cautions that similar police conduct will be less justifiable going forward. The impact of this approach found immediate expression in the companion case of Harrison where, following the new framework of analysis, the court excluded thirty-five kilograms of cocaine, finding that, "the price paid by society for an acquittal...is outweighed by the importance of maintaining Charter standards."
 R. v. Grant , 2009 SCC 32, para 3. Grant also dealt with the meaning of detention pursuant to Charter section 9, which is beyond the scope of this article. The other three cases are R. v. Harrison, 2009 SCC 34, R. v. Suberu, 2009 SCC 33 and R. v. Shepherd, 2009 SCC 35.
 There were two concurring decisions. Justice Binnie agreed with the majority on the 24(2) analysis. Justice Deschamps disagreed with the majority's 24(2) analysis, but concurred in the result that the revolver ought to be admitted.