In my previous guest post at Double Aspect, I asked an intractable question: what is it that we are doing when we are engaged in constitutional interpretation? Depending on how one answers this question, different sources of meaning will become more or less significant. However, one source must always be at least relevant: the Constitutional text itself. It is the one, and perhaps only one, fixed star in the constellation of sources one draws upon in the course of constitutional interpretation, and I have previously argued that we should pay particular attention to it as a result. The judicial conscience or temperament, social values, public policy objectives, academic prescriptions, international law, and many other potential sources, may differ between reasonable people and may change with the times. The actual Constitutional text can and will not, and it is only source that has withstood the crucible of democratic decision-making and been enacted into law. While the text alone cannot answer many of our difficult questions, when it does give an answer – or, as importantly, rule out an answer – we should consider that significant.
Of course, no plausible approach to constitutional interpretation self-consciously ignores the text or treats it as irrelevant– but some pay greater attention to it than others. A recent Ontario Court of Appeal decision, R. v. Pino, asks us to consider how much attention is enough.
I will not get too deep into the facts of that case, because they tend to complicate matters, and I happen to think that the very same outcome was available by another route without getting into the interpretive swamp into which I now leap. But in very brief: the police received a tip that the accused was running a grow-op, which seemed to be borne out by subsequent observation of her residence; the police followed the suspect, obtained incriminating evidence from the trunk of her car in a lawful search incident to arrest, but committed Charter violations in the course of that arrest, then failed to adequately inform the accused of her right to counsel, and denied that right for a period of time later on.
The issue I am interested in was the Court’s conclusion that evidence otherwise collected lawfully can be considered “obtained in a manner” that infringed the Charter, due to a subsequent Charter breach. The section at issue is section 24(2), which provides:
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [emphasis added]
As the Court of Appeal in Pino notes, this provision, plainly read, seem to require a causal connection between the Charter breach and the obtaining of the evidence:
On a superficial reading of s. 24(2) one might be tempted to conclude that the “obtained in a manner” requirement can only be met by a causal connection between the breach and the discovery of the evidence: “but for” the breach the evidence would not have been discovered. [para 50]
However, the Court found that one should resist that temptation, because “the Supreme Court has long recognized that a causal connection is unnecessary” [para 50]. We should pause to consider why.
As I read the Supreme Court’s decision in R. v. Strachan (and I confess that I am slightly outside my comfort zone here), the primary reason the Court gives for why “obtained in a manner” does not require a causal connection between a breach and the discovery of evidence is because it should not. The Court says that including a causation requirement (an unavoidable and familiar inquiry in many areas of law, but leave that aside) would present a “host of difficulties” [at para 39]; it would be ungenerous and restrictive [at para 40-42]; and it would prevent the courts from reaching what the Court considers to be the “more important” branch of the 24(2) inquiry, which is whether the admission of the evidence would bring the administration of justice into disrepute [at para 47]. In short, requiring a causal connection would be not “useful”, “fruitful”, or ‘sensible’; a “better approach”, according to the Court, “would be to consider all evidence gathered following a violation of a Charter right, including the right to counsel, as within the scope of s. 24(2)” [para 45].
These may all be excellent reasons not to link the exclusion of evidence to whether or not they were “obtained in a manner” that breached the Charter. But as a matter of interpreting that language, the logic (taken alone) is somewhat unsatisfying: just because one interpretation would have consequences an interpreter does not consider sensible does not necessarily confer a license to circumvent an authoritative direction. (The fact that it may not be sensible to locate a stop sign on a normally-vacant rural road does mean that the sign actually says “yield”.)
The Court of Appeal in Pino follows the Strachan logic quite closely, and expands it quite naturally, to capture Charter breaches that occurred after the evidence was obtained. In coming to that conclusion, the Court quoted the eminent Professor Kent Roach, who points out that:
From a regulatory perspective, it should not matter whether the evidence was obtained before or after a serious Charter violation. In both cases, the administration of justice could be brought into disrepute if the courts appear to condone a serious Charter violation. If the court is concerned with responding to serious violations, there is no reason why evidence discovered before a violation should not be considered for exclusion. [para 69]
Thus, and notwithstanding the Supreme Court’s apparent direction that evidence must be gathered following a breach to qualify for exclusion under 24(2) [Pino at para 63], the Court of Appeal devised an approach it considered more sensible, and better directed at achieving the purpose of the section:
A generous approach to the “obtained in a manner” requirement makes good sense because this requirement is just the gateway to the focus of s. 24(2) – whether the admission of the evidence would bring the administration of justice into disrepute. (…)
So, should it make a difference whether the s. 10(b) breaches occurred before or after the discovery of the evidence? I do not think so. In either case, the administration of justice could be brought into disrepute if the court condoned serious Charter violations. [paras 56, 77, emphasis added]
In short, the Court appears to reason that the “overall purpose of the section”, which it finds is to determine “whether admission of the evidence would bring the administration of justice into disrepute” [at para 51], would not be achieved by being too finicky about exactly how or when that evidence itself was obtained.
However, as the Court of Appeal itself recognized earlier in the judgment, 24(2) imposes two requirements for the exclusion of evidence: 1) that it was obtained in a manner that violates the Charter; and 2) that its admission would bring the administration of justice into disrepute (see Strachan at para 36, Pino at paras 35-36). A provision permitting the exclusion of evidence wherever the administration of justice would be brought into disrepute could be easily drafted. Here, look, I’ll draft one now:
(2) If a person charged with an offence has had their Charter rights breached, the Court may exclude any evidence if the admission of it in the proceedings would bring the administration of justice into disrepute.
But that is not the provision in the Charter, and I think we should be cautious before reading it in that manner.
In fairness, the Court of Appeal did not go that far, emphasizing that there must at least be some “contextual” link between the breach and the evidence, whatever the sequencing of the two [paras 72-74]. Returning to its reasoning, the Court of Appeal quoted with approval the trial judge’s extra-judicial writings, in which he had observed:
There are also sound reasons of policy for leaving this door open. Assume that the police discover marijuana during a lawful and reasonable pat-down search and then publicly and needlessly go on to strip search the suspect. Is a court to be deprived of the power to exclude the evidence because of the sequence of events? To insist on the breach preceding the discovery of evidence as an absolute precondition to exclusion means that ex hypothesi evidence can be admitted even where its admission would bring the administration of justice into disrepute, just because of the order in which things happened to occur.
As in Strachan, this is an excellent reason for not including certain words (like “obtained in a manner”) in a constitutional provision, but with great respect, I am not sure how far the logic takes us as a matter of interpreting what those words mean. One does not typically ignore one requirement because applying it would prevent him or her from considering the second requirement. That is not normally how “requirements” work. (It might be how “gateways” work, to use the Court of Appeal’s word, but only to the extent that gateways not actually require anything or serve any discernable purpose.)
This is a relatively intuitive point that I fear can be obscured by lawyerly creativity, so consider a direction from your parents: “If you want dessert, you may have some, but only if you finish your supper first”. No non-lawyer familiar with the English language would suggest that a child may ignore the supper requirement because it would be impractical in some circumstances to eat supper, or because it would prevent the child from focusing on the “more important” inquiry of whether the child wants to have dessert.
And I am not sure that this trouble can be avoided by reciting the words “broad” and “generous” over and over. It is worth pointing out that every time evidence is excluded from a proceeding, society’s interest in having persons held accountable for the commission of offences is compromised. Accordingly, the old common law rule was that all relevant evidence was admissible, with courts adverse to the conclusion that the “criminal is to go free because the constable has blundered”. Section 24(2) has unequivocally changed that, and to many of us, for the better; society, like the accused, also have an interest in law enforcement acting in a constitutionally sound manner. But that does not make the exclusion of evidence somehow costless, and on some level, it must have been that trade-off motivating those charged with drafting and approving the “obtained in a manner” requirement.
The same tension exists whenever it is the constitutionality of a statute that is at issue. Every time the Court reads a Charter right or freedom broadly and generously, they necessarily read the corresponding scope of democratic governance narrowly and restrictively. Of course, this tension is an unavoidable (and expected) result of enacting constitutional rights; every application of the Charter, no matter how narrowly interpreted, limits the scope of democratic self-governance to some extent, which is entirely the point of entrenching constitutional rights. So pointing out consequences is not suggest the courts should ignore their constitutional function; it is only to suggest that any gain in terms of rights comes at a cost in terms of democracy. As such, an overly broad interpretation results in an unduly narrow scope for democratic self-governance, and vice versa. It is not obvious to me that either error should be deemed presumptively preferable, and the proposition that Charter rights should necessarily and always be interpreted as broadly as possible is more often asserted than defended. A sound interpretation of any Charter provision, including section 24(2), may be broad, or it may be narrow, or it may be in between, but presumably that should be the conclusion of the interpretive process, not the predetermined objective.
One other point might be made. With each step we take away from genuinely trying to understand what the text means, the next step further away gets easier. The Court in Strachan found that the phrase “obtained in a manner” imports no strict causal requirement, but nevertheless stated that any breach at least had to precede the discovery of the evidence. This chronological threshold has now been scrapped, essentially because it made no sense once you have deemed causation to be irrelevant. The next judicial step may be further away, still: if maintaining the repute of the administration of justice is our primary (or exclusive?) goal, why should we insist on any meaningful connection between the breach and the discovery of evidence? Is that requirement not ‘artificial’, in the same way as the other thresholds; i.e. because, in certain cases, it may prevent us from reaching the “more important” inquiry of whether admission of the evidence would bring the administration of justice into disrepute? For instance, why should evidence collected lawfully be excluded because a suspect was beaten savagely in the course of an immediately succeeding arrest, but not if the savage beating occurred back at the police station a few hours, a day, or two days later?
The point is that while each step away from the one before may seem minor and defensible enough, if we keep walking we may eventually lose sight of where we started. I should state my view that the Court of Appeal’s decision in Pino has much to recommend it: while a chronological requirement makes sense with a causation requirement (something cannot be caused by something that comes after it), it does not seem to serve any obvious purpose if we are not at all concerned with causation. Thus, as a matter of reading the case law, I’m not sure the Court of Appeal’s decision can be gainsaid. But as a matter of reading the Constitution, I wonder if we have not gone too far, or are at least teetering on the edge: we have now arrived at a situation where evidence may be considered to have been “obtained in a manner” that breaches a Charter right, because a Charter right was breached after the evidence was “obtained in a manner” that does not breach a Charter right.
Professor Sankoff made something like this point on twitter, asking: “isn’t it just time to stop pretending that ‘obtained in a manner’ has any meaning?” Now, I do not take the Professor to be implying that the words are actually meaningless; “obtained in a manner” is not gibberish, it is a grammatically sound and intelligible English phrase. The question he may have been asking is whether we should stop pretending that we care what that meaning is, and that is a fair question, if the answer could possibly be “no”.
Finally, and I cannot stress this next point enough: downplaying the ‘obtained in a manner’ requirement might result in a better provision; it may be easier to apply; it may be a more just and sensible provision; and I may well prefer it myself, if I had my druthers. So I do not question whether where we have ended or might ultimately end up may be preferable in many respects; I question whether implicitly redrafting the language in a way that is more preferable constitutes an “interpretation”, or something else.
As I’ve argued before, where judicially-defined purposes not only inform but overwhelm the text, we might well end up with a better constitution; but it will be one to which no democratically elected body assented. Maybe we don’t care about that, or at least not very much, as long as we approve of the results. And we can certainly take solace in the fact that our judiciary is comprised of thoughtful, principled, and eminently – well, sensible – people, and I personally have no doubt on that score. If I were to choose a group of people I trust with writing a new constitution, our judges would be among the top of my list. But for the time being, they have been tasked with interpreting the Constitution written and approved by others, not to write it anew. While the line between the two functions is murky, there must be a line.
Double Aspect 
24(1)!