The Toronto Star’s recent “Unchartered” series highlights hundreds of cases where judges exclude evidence from trial after finding that police have violated an accused’s Charter rights. Police forces do not track Charter breaches. Any repercussions to officers in terms of discipline or guidance tend to be haphazard and dependent on other factors, including media attention.
The Star reporting identifies systemic problems in terms of police implementation and accountability around Charter rights. Our research complements that investigation and highlights some nuances as well. In our study, there is a clear need for improvements to police training on the Charter. As well, police organizations, Crowns and provincial governments need to do a better job of collecting data and providing feedback. To the extent that the Canadian Charter of Rights and Freedoms is knowingly and repeatedly breached, disciplinary measures should be taken. Hopefully these incidents are made less frequent by more effective training and communication.
We spoke to police officers in three different-sized forces in Ontario. Many expressed a strong desire for additional training in the Charter around such issues as search and seizure, right to counsel and protection from arbitrary detention. Limited Charter education is provided to officers before they hit the street and not much training is provided after. However, there is typically additional training offered for specialized units, such as drug enforcement.
In the absence of any direction from the province, individual police forces are left to respond to rulings as they are decided, when and if they do become aware of them. There’s little accountability regarding any follow-up. Some, but not all, forces are helped by networks such as the Canadian Association of Chiefs of Police and their own legal department. However, the quality of information going to line officers varies.
Some departments have electronic bulletin boards with cases and others do not. Most departments send out bulletins about important cases, but some are little more than legal recitations of the decisions and some provide just a link to the decision. Others more helpfully try to put the decision in plain language and provide scenarios about what can or cannot be done according to the decision.
Respondents in our research noted that they rely on each other (and the media) to keep themselves informed about Charter jurisprudence. But this means that the communication of often complex judicial decisions in this fashion may result in misperceptions and add to officer confusion. Better information and better training will not fully address intentional Charter infringements, but it could – at the very least – limit excuses that an officer “didn’t know any better.”’
Gaps in training are exacerbated by something the Toronto Star also noted: the sporadic feedback officers receive about how they collected evidence. In some instances, Crowns will inform officers or their superiors about problems with the collection of evidence or report on a judge’s decision to exclude evidence. At other times, police might learn about the exclusion only once it hits the media.
The feedback process appears to vary both within and between police organizations, often depending on individual officers and Crowns and their informal relationships. A more systematic feedback process would help officers to be better aware of where their actions violated the Charter. For example, the Saskatchewan RCMP appears ready to implement just such a system in a reform that is overdue. Our research suggests officers would welcome a practice of more regularized feedback.
More training and feedback are particularly important given that judicial decisions and the rules surrounding police investigations are often complex and murky, something the Star investigation did not fully acknowledge. Legal scholar Kent Roach recently wrote, “[t]he Supreme Court of Canada’s jurisprudence on police powers is massively complex and difficult for law professors, let alone the police, to follow and understand.”
A good illustration of how Charter rules surrounding police investigations can be confusing involves whether an individual has been arbitrarily detained. Determining if a “detention” has occurred requires considering “three non-exhaustive factors that can aid in the analysis.” These factors all have to be viewed within context of the encounter.
One is the circumstances that gave rise to the encounter, and another is the particular characteristics of the accused (such as race and age). A third factor is the nature of the police conduct. This includes assessing such matters as the proximity of police to the accused, the language used by the officer in addressing the accused and the aggressiveness of the police actions.
If a detention has occurred, another set of considerations is used to determine whether it was “arbitrary.” Judges often disagree amongst themselves on these issues. Take for example, R. v. Le, when a trial judge found no Charter breaches in the arrest of Tom Le, a 20-year-old man. In his case, the police entered the fenced backyard of a Toronto townhouse after a security guard for the housing co-op directed them there. They were told there were concerns about drug trafficking in the backyard.
They started asking questions of a group of five racialized young men when one of the officers noticed Le nervously attempting to conceal a small bag. This prompted the police to ask what was in it. Le ran and when apprehended was found to have a loaded gun in his satchel, and was also carrying cocaine.
Two judges of the Ontario Court of Appeal agreed with the trial judge, but one judge wrote in dissent that Le’s Charter rights had been violated due to the unlawful entry and “intimidating and oppressive” police conduct. At the Supreme Court of Canada (2019 SCC 34), three judges voted to overturn the trial judge and the Ontario Court of Appeal, while two judges in dissent concluded that the evidence should be admitted at trial.
Was it a “momentary” and “technical” infringement outweighed by the societal need to get guns and drugs off the street, as two judges saw it? Or was it a more serious violation that society has an interest in disavowing, as the majority perceived it?
It’s hardly surprising then that in our survey, police had a wide variety of responses to a scenario of arbitrary detention. Its context-specific nature and the fact that judges themselves disagree on applications mean there is a lot of ambiguity.
The recent Supreme Court decision in R. v. Lafrance, which featured a 5-4 split, did not help to clarify the rules around police detentions. Part of the disagreement amongst the judges was whether Lafrance – a 19-year old Indigenous man suspected of involvement in a murder – was “detained” when a group of police officers searched his home and then asked if he would go to the police station to answer questions. The majority argued that the initial search and subsequent questioning in a controlled environment at the station constituted a “detention,” which meant that police should have informed Lafrance of his right to “retain and instruct” counsel under s.10(b) of the Charter. The dissenting judges disagreed, emphasizing that the police explicitly told Lafrance that he need not speak to them and was free to leave. They worried that the court’s latest guidance “risks turning every common police encounter into a detention and creating situations where police are unable to control whether they breach Charter rights.”
The Supreme Court’s reliance on balancing competing contextual factors means that police must predict how other criminal justice actors will perceive their actions. Our survey respondents viewed individual judges and Crowns as differing from one another in what constituted a Charter breach and whether evidence should be withheld or excluded.
Some studies suggest that decisions to exclude evidence vary in statistically significant ways based on judges’ professional backgrounds and region. Meanwhile, public opinion suggests that while Canadians are supportive of Charter rights, they favour the admission of evidence more than judges typically do when considering the nature of the crime and the police conduct. In our research, a number of police respondents expressed frustration with ever-shifting and overly burdensome Charter decisions, particularly in drinking and driving cases.
The complexities surrounding the Charter rules should not, however, detract from the systemic problems uncovered by the Star and the often-shocking actions of officers described in the article. The seemingly deliberate practice of non-compliance by some services is troubling and requires a stronger policy response. And, of course, the differential impact of police conduct on racial and marginalized groups – as the Toronto Police recently self-reported – remains a pressing matter of concern.
It is in everyone’s interest – including the police themselves – for the difficult job of policing to be supported by organizational changes in training, data collection, feedback and, in cases of repeated or flagrant breaches, discipline by police organizations. There is an opportunity here for provincial governments to provide direction toward consistent improvements in policing. The police and the communities they serve deserve nothing less.