Too Good for the Neighbourhood
- June 16, 2018
- Clayton Rice, Q.C.
The exclusion of unlawfully obtained evidence from a criminal trial in Canada is governed by s 24(2) of the Charter of Rights. Evidence obtained in a manner that infringed a Charter right shall be excluded if its admission in the proceedings would bring the administration of justice into disrepute. What, then, does obtained in a manner mean?
1. Analytical Framework
The Supreme Court of Canada has taken a broad, purposive and generous approach to this threshold question since the landmark decision in R v Strachan,  2 SCR 980 where Chief Justice Brian Dickson held, at para 46, that a causal relationship between a Charter breach and the obtaining of the evidence is not necessary. Evidence will be obtained in a manner that violated a Charter right if the violation and the obtaining of the evidence are part of the same transaction or course of conduct. In R v Wittwer,  2 SCR 235 Justice Morris Fish, writing for a unanimous court, at para 21, endorsed the ruling in R v Plaha (2004), 188 CCC (3d) 289 where Justice David Doherty held, at para 45, that the connection between the breach and the evidence may be temporal, contextual, causal or a combination of the three. (See also: R v Brydges,  1 SCR 190 per Lamer J, at para 19)
The contextual analysis has received recent currency as a result of the ruling in R v Pino, 2016 ONCA 389 where Justice John Laskin held that “the Supreme Court’s generous and increasingly broad approach to the ‘obtained in a manner’ requirement allows the court, in an appropriate case, to exclude the evidence because of a Charter breach occurring after the evidence was discovered.” It is the contextual analysis that will be the focus of my following comments. (See also: R v Mian,  2 SCR 689 per Rothstein J, at paras 72 and 77; and, On The Wire. Lifeline To The Outside World. July 10, 2016)
2. Recent Developments
The dominant trend in the post-Pino case law in Ontario and Alberta supports the conclusions that (a) a contextual connection is sufficient to meet the threshold and (b) a violation of a Charter right may occur before or after the obtaining of the evidence provided the connection is not tenuous. The majority of cases that have applied Pino are from the courts of Ontario. In Alberta, the authorities have followed Pino with one exception. (See e.g., R v Bullen, 2016 ONSC 7875 per Ray J, at para 11; R v Mach, 2017 ONCJ 473 per Downes J, at para 61; and, R v Lau, 2018 ONSC 2550 per de Sa J, at paras 74-7; and also, R v Goldhart,  2 SCR 463 per Sopinka J, at para 40)
In R v Hoelscher, 2016 ABQB 403 Justice Eldon Simpson declined to follow Pino, at para 15, until the Supreme Court of Canada “approves this approach” irrespective of the endorsement already given to the contextual analysis by Justice Fish in Wittwer. The ruling in Hoelscher is an aberration in the law and was not followed by Justice K.D. Yamauchi in R v Hussein, 2016 ABQB 403 or Justice Ritu Khullar in R v Kenowesequape, 2018 ABQB 135. (Ken-oh-wes-a-kwa-pay)
In Hussein, the Crown conceded a breach of the right to counsel under Charter s. 10(b). The police justifiably held off allowing Hussein to exercise his right to counsel on arrest until search warrants were executed. However, the officer who was responsible for notifying the police station when the warrants had been executed failed to do so. That resulted in the Charter breach of about two hours in duration. In following Pino, Justice Yamauchi held, at paras 107-8, that contextual means “pertaining to the surroundings or situation in which something happens”. There was a temporal connection in that “the breach and the exercise [sic] of the warrants were relatively close in time and part of the same ‘transaction’.” There was a contextual connection because the delay in allowing Hussein to consult counsel was tied to the delay in advising the police station that the warrants had been executed.
In Kenowesequape, the defendant was a young indigenous man who was stopped by the police for riding a bicycle without a light – a regulatory offence contrary to the Traffic Safety Act, RSA 2000, c. T-6; Vehicle Equipment Regulation, Alta Reg 122/2009 . One of the police officers testified at trial that “the bicycle appeared more valuable than the typical bicycle you might see in that neighbourhood”. He suspected it might be stolen. A search of Kenowesequape’s name in a police database revealed an outstanding arrest warrant. A pat-down search incidental to arrest yielded a small amount of drugs. Following the search, the police questioned Kenowesequape about the bicycle in violation of his right to counsel and his right to be informed of the reason for arrest contrary to Charter s 10(a) and (b). The bicycle did not show up in any stolen property reports. Although no charges were laid in relation to the bicycle, the police confiscated it anyway. Judge Raymond Bodnarek, of the Provincial Court of Alberta, at Edmonton, convicted Kenowesequape of drug possession, breach of bail and failing to attend court. He appealed.
On the summary conviction appeal, the question arose: Should the drugs obtained during the pat-down search have been excluded by the trial judge as a result of the subsequent breaches of Kenowesequape’s Charter rights? In rejecting Hoelscher, Justice Ritu Khullar disagreed that a Charter violation must occur before the discovery of evidence and emphasized, at para 33, that exclusion jurisprudence since Strachan has not remained static. To the contrary, “the trend of the jurisprudence has evolved – if a causal connection is not required, why does the breach need to precede the gathering of evidence?” In light of the purpose of s 24(2) which includes recognition of the “intrinsic harm that is caused by a violation of a Charter right or freedom, apart from its bearing in the obtaining of the evidence”, it is appropriate that a sufficient connection may be contextual or temporal alone. Justice Khullar therefore concluded, at para 34, that “it is necessary to let go of the formalism of requiring a breach to precede the evidence” in order to give purpose to s 24(2).
There were sufficient temporal and contextual links between the Charter violations and the results of the pat-down search to meet the threshold and ground exclusion of the evidence. The police conduct occurred over a two minute period. Justice Khullar concluded, at paras 38-41, that this temporal connection was “buttressed by the strong contextual connection” given that the Charter breach related to questioning about the bicycle and the initial “police stop would never have happened but for the bicycle”. As Justice Khullar put it, at para 41, the bicycle “bookends the interaction” between Kenowesequape and the police providing the contextual nexus. The evidence was excluded, the convictions set aside and acquittals entered.
In summary, the threshold question whether evidence was obtained in a manner that violated a Charter right may be distilled to these principles:
- the approach taken should be broad, purposive and generous (Strachan, para 46; Brydges, para 9; Wittwer, para 21; Pino, para 72)
- a causal relationship between a breach and the evidence is not necessary (Strachan, para 46)
- the threshold may be met where the breach and the evidence are part of the same transaction or course of conduct (Plaha, para 45; Pino, para 72)
- the breach does not have to occur prior to the obtaining of the evidence (Pino, para 48; Kenowesequape, paras 33-4)
- the connection between the breach and the evidence may be temporal, contextual, causal or a combination of the three (Plaha, para 45; Wittwer, para 21; Pino, para 72; Kenowesequape, para 33)
- consideration should be given to the entire “chain of events” between the defendant and the police (Pino, para 72); and,
- the connection must be more than tenuous; remote means tenuous (Goldhart, para 40)
I will leave you with these comments about Kenowesequape. It was argued on appeal that Kenowesequape’s detention was motivated by racial profiling or carding. But there was an absence of racial profiling in the trial record and Justice Khullar was not prepared, at para 16, to take judicial notice of the disadvantages of indigenous people in Canadian society, and the over-representation of indigenous youth in the criminal justice system, to conclude that “the police must be engaging in racial profiling generally, or specifically in this case”. Judge Bodnarek had found the testimony of the officer that he would enforce the regulation regardless of race to be credible. The officer was vigorously cross-examined about racial profiling and that finding was entitled to deference on appeal.
The case is yet another example of a young indigenous man in conflict with Canadian law enforcement – in this case a police officer who thought the bicycle was just too good for the neighbourhood – and, by extension, just too good for Kenowesequape. The inference is inescapable that the stop was triggered by the constable’s subjective belief about the value of the bicycle – and, by extension, that the rider couldn’t afford it. It conjures the image of a black man driving a Cadillac through Selma, Alabama, in 1958. Justice Khullar described the officer’s testimony this way, at para 3: “The constable testified that the bicycle appeared more valuable than the typical bicycle you might see in that neighbourhood, which led him to suspect it was stolen.” Not only, then, did the bicycle bookend the contextual analysis of Kenowesequape’s interaction with the police – it was the catalyst of a classic shakedown. The bicycle, after all, was not riding itself.