Is that 'Technicality' An Important Charter Right?

“He got off on a technicality”

A colleague of mine used this phrase recently while commenting on a case so I decided to write about it.  This is often the reaction of people upon learning about an obviously “guilty” individual evading justice; a little luck and perhaps some clever lawyering and the accused went free.  The purpose of this short post is to hopefully make you think, even just for a couple of minutes, about our system of justice.

The classic scenario where this sentiment arises involves a situation like what occurred in the case of  R. v. Harrison, 2009 SCC 34.  There the accused was stopped by police for what was initially believed to be a minor traffic violation.  During the course of the stop the police officer realized he had made an error, but continued with the stop anyway.  What happened next is a question of perspective:  either the officer did some skillful detective work, or he made a lucky guess.  Either way he searched the vehicle and found 35 kilograms of cocaine worth an estimated $4 million. 

The case eventually was heard by the Supreme Court of Canada.  Ultimately the Supreme Court excluded evidence against the accused and he was acquitted of the charges.  I understand the impulse to say Mr. Harrison “got off on a technicality.”  We all know he had the drugs in his car.  There is really no debate about that.  However, as a society I believe we should also be concerned about whether the manner in which he was caught was fair.  Did we have to violate some of the principles which we hold dear to us in order to catch Mr. Harrison?  For instance, I think (I hope) we are all on common ground that using a confession which was beaten out of an accused wouldn’t be particularly sporting of us.  Apart from questions of the reliability of that confession, we wouldn’t feel especially good about obtaining the evidence in that manner.  The lines are often blurred a bit more however when we switch to a topic like privacy.    

In keeping with the Harrison example, we should acknowledge that the incentives already weigh in favour of the police violating individual’s rights during a traffic stop.  To be perfectly frank, there isn’t much stopping them from regularly stopping people and searching them without reasonable and probable grounds to believe they have committed an offence.    If an innocent user of the road is stopped and unlawfully searched, then typically that individual will carry on his or her day without much recourse for the violation he or she endured.  One might feel a bit “peeved” and complain their friends and loved ones, but apart from having a somewhat interesting story to tell at parties most people won’t make much of the violation.  There is no efficient mechanism—at least nothing that is regularly used—for dealing with breaches of privacy of innocent people in this way. 

On the other hand, if the police violate the rights of an alleged offender, then at the very least (even if the evidence can’t be used in Court—which it often still can) they have often seized some contraband and have made life more difficult for a criminal.  Why not act on a hunch if the police have nothing to lose?  There is no reliable record keeping that I am aware of for tracking the Charter violations of innocent parties, so we just don’t know how often the police get it wrong before they get it “right”.  I should note that in my experience the majority of police officers adhere to the Charter and there are often internal mechanisms that punish police for breaching the rights of individuals.   

That being said, in my view the Courts don’t emphasize these misaligned incentives enough.  The embarrassment or disciplinary action suffered by police in having evidence excluded is often only a factor when the officer could have obtained the evidence legitimately.  In the case of Harrison the only way the police were going to find those drugs during that stop was by infringing Mr. Harrison’s rights.  They succeeded in getting 35 kilograms of cocaine off the streets, and Mr. Harrison was forced to endure a stressful and expensive legal battle.      

What is the acceptable number of innocent people who should be stopped on the road and searched so that we might find one person doing something illegal?  Would your answer change if something else (something more abhorrent) was found in Mr. Harrison’s trunk?  Do we want the State to search our cars or homes without any check on their ability to do so?  What about reading our emails?  Monitoring what websites you visit?     

There are no easy answers to these questions.  In Canada, the determination of whether evidence obtained by unconstitutional means should be admitted during the trial is made by the weighing competing interests:  in essence society’s interest in adjudicating the case on its merits vs. the individual rights of the accused.  (The seriousness of the breach is also a factor).  Nobody likes to see a truly a bad person get away with something when we know they did it, but when we use the word “technicality” what we are often referring to is an extremely important Charter right. 

It is a somewhat bizarre fact that our Charter-protected rights have been fleshed out primarily through criminal litigation.  Drug traffickers and impaired drivers who have won and lost battles in court have helped clarify the restrictions on police conduct when dealing with innocent motorists.  There have been a number of cases in the last three years involving all manner of offences which have begun to set the boundaries for State infringements on Canadian’s privacy regarding their cell phone, computer and internet use.  These “technicalities” often ultimately result in greater protections to the individual freedoms for us all.  I’m not saying you should write a thank-you card to Mr. Harrison for enhancing your rights as a user of the road, but I think we owe it ourselves to know and understand the principles involved in cases like these.    

Hopefully this post left you a little less sure about the “right answer” than you were when you started it—or perhaps you are still wondering if the government is reading your emails...