On November 30, 2012 the Supreme Court of Canada released the decision of R. v. Aucoin, 2012 SCC 66 (CanLII). The judgment, written by newly appointed conservative-minded Supreme Court Justice M. Moldaver, dealt with the impropriety of a police officer searching and detaining a person in the back of a police vehicle while preparing traffic offence tickets. Mr. Aucoin was pulled over by police because the licence plate of the vehicle he was driving was registered to another. Once investigated, he failed a roadside screening test. As a result, the officer decided to impound the vehicle and charge him with driving infractions under the Motor Vehicle Act (Ontario’s equivalent to the Highway Traffic Act).
According to the officer at trial, he feared Mr. Aucoin might flee from the police into a nearby Crowd and so searched him in order to detain him in the back of the police car until paperwork was completed. The Court found that in so doing,Mr. Aucoin’s rights were violated by the detention as it was not reasonably necessary. Yet what the right hand giveth, the left hand taketh away. The Court also held that despite this clear violation of Mr. Aucoin’s rights, he was not entitled to a remedy under Canadian law because the officer acted in “good faith”. No exclusion of evidence (drugs in this case), no reprimand to the officer, no monetary award, no apology, simply a declaration that his rights were violated. The Court justified this on the basis that the the circumstances were “unusual” and he “attempted to respect the rights” of Mr. Aucoin.
All of this is of little value to Mr. Aucoin’s whose rights were actually violated. It is also of little value to other Canadians in the future who find themselves in the back of police cars while speeding tickets are being drawn up. An officer simply needs to explain any “unusual circumstances” that in their mind felt it was necessary to search and hold a person in custody. In short, constitutional rights of Canadians mean very little as long as police “tried their best” or “acted in good faith”. It certainly isn’t a defence in civil judgments for negligence to state that one “tried their best”, nor is it a defence in any criminal case to say “I wasn’t aware that this was illegal”. It is ironic and pathetic that when assessing one’s rights, the standard held to police is significantly lower than every other Canadian who tries their best to abide to the law of the land despite their professional training otherwise. The further irony is that the law on exclusion of evidence under 24(1) of the Charter of Rights and Freedoms is premised on whether the exclusion would ”bring the administration of justice into disrepute”; what can be more discouraging and more castrating to a person’s rights and respect for the law to say that even if your rights are violated, you are not entitled to any recourse. As well stated by Pamela Karlan in her article in the Boston Review:
In the momentous 1803 case Marbury v. Madison, Chief Justice Marshall observed that the “very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury” and warned that a government cannot be called a “government of laws, and not of men . . . . if the laws furnish no remedy for the violation of a vested legal right.”
When the government itself violates individuals’ rights, it is especially important for courts to furnish a remedy. To be sure, providing remedies to the victims of unconstitutional conduct after the fact is often at best an imperfect solution. While money plausibly provides full compensation to, say, a government worker denied income while suspended for engaging in First Amendment–protected activity, it may be far less effective in a case involving an unconstitutional strip search: Can money really restore the sense of security that the victim has lost? If not, perhaps it can at least enable her to begin rebuilding her life.
Of course here in Canada, the idea of monetary reward for such violations is practically unheard of. In Canada it is exclusion or nothing in the cases of illegal searches; and in this case, it was nothing. In Canada, the only practical remedy available to a person whose rights are violated falls to exclusion of evidence or a stay of proceedings. Civil lawsuits are bound to fail, sanctions upon police for constitutional violations are virtually non-existent, and other meaningful sanctions on the state simply do not exist.
In dissent, Justices LeBel and Fish JJ. pointed out several factors that clearly warranted exclusion:
- Warrantless searches are presumed to be unreasonable;
- A failure of the judge to determine whether reasonable grounds existed for a search for weapons;
- A lack of evidence that there was any reasonable or subjective belief for officer safety or safety of others;
- The serious violation of the accused’s rights;
- The ignorance and/or disregard for well?established constitutional standards for police conduct;
- The high expectation of privacy a person has in their pockets;
- The derivative nature of the evidence (in that the evidence would not have been found without the violation)
- The arbitrary nature of the detention and how it affected the accused’s liberty interests and rights; and,
- That he was was not informed of a right to counsel and the search was premised upon self-incrimination;
Yet all of this was not enough to find for the majority that it was better as a matter of long term legal consequences to have Mr. Aucoin’s evidence excluded. In essence, the Court held that the rights of all Canadians is better served by having Mr. Aucoin convicted of some drug offences than sending a strong message to police that police ignorance of Canadian’s rights, or a refusal to recognize them will not be tolerated and evidence will be excluded. Instead, the only strong message that was sent was that the highest Court in Canada will protect police and state actions provided they meant well, or acted in “good faith” as they say.
As a practical matter and speaking from a defence lawyer’s perspective, it is exceptionally difficult to prove that an officer ever acts in bad faith. The more “bad faith” an officer has, the more likely they are to continue that attitude and conceal their true motivations. We as defence lawyers are left with a state of affairs where we must either hope for evidence that somehow proves an officer is lying and demonstrates “bad faith” or hope for an officer who acts in bad faith but then is honest about it at trial – I can tell you from experience, that this mythical creature does not exist. All officers will claim that they acted in good faith either because they were, or more commonly in my experience, they know and understand the ever increasing exceptions to have evidence immune from exclusion.
What judgments like this generate is not a protection of Canadian’s rights, but a legal manual for the state and police to circumvent Charter rights. Police care very little about whether or not a Court finds they violated a person’s rights, they care about whether evidence is excluded or not; just as an accused cares very little if a court finds their rights were violated, they care about what the remedy is. What judgments of this nature also show is that not only is there no remedy for an accused person, but there is no sanction for officers who breach rights if guided by the nebulous concept of “good faith” – if anything there may be incentives as convictions will no doubt increase their career prospects.
What seems to have been lost along the way in the Courts forever fashioning exceptions for remedies, and forever finding “unusual circumstances”, is that the Charter was not meant to simply be an interesting academic debate among lawyers and judges, it was meant to protect Canadian’s by providing remedial measure for state violations of individual’s rights. As the remedial sections 24(1) and 24(2) of the Charter state:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(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.
At what point did State ignorance of the law and “trying our best” become the gold standard for constitutional rights and the protection of all Canadians?