Law Times

Law Times • may 30, 2016 Page 7 www.lawtimesnews.com Excluding ill-gotten evidence necessary E xcluding relevant evidence from a criminal trial — especially where it leads to the acquittal of a guilty accused — is never a very popular business, but it's sometimes necessary. Section 24(2) of the Charter says the point is to avoid bringing the administration of justice into disrepute. Courts have been trying for more than 30 years to give meaning to this vacuous phrase, and provide some structure to its application. It's a difficult problem, since the words of s. 24(2) really only tell us that exclusion isn't automatic, as the American exclusionary rule is reputed to be. Giving some kind of predictable structure to the analysis has been a long-term challenge for the courts at all levels. The Ontario Court of Appeal's recent decision in R. v. McGuffie, 2016 ONCA 365 is an important reminder that s. 24(2) has work to do in maintaining po- lice respect for civil liberties — and that it needs real teeth if it's going to carry out that work. Late one night in December 2011, the Ottawa Police responded to a tip that some guys were passing a handgun around in a bar. When the police arrived, two men hurrying away from the prem- ises quickly caught their attention. Phillip McGuffie was one of them. The officers stopped him, asked him some questions, and patted him down — no handgun was found. Lacking grounds to arrest, Const. Greenwood nonetheless decided to put him in the back of a fellow officer's cruiser, handcuffed, while he went back to contin- ue the investigation at the bar. McGuffie was kept there for more than half an hour, then subjected to yet another search. This one turned up a package of cocaine in Mc- Guffie's shirt pocket. Now un- der arrest, McGuffie was not availed of his right to counsel, but he instead was taken back to the station and forced to submit to an unnecessary strip search. The trial judge wasn't im- pressed with the lead officer's conduct and found a number of Charter breaches. However, he opined that the actions of the other officers were "text- book" and was, therefore, satisfied that there wasn't any systemic problem with the conduct of the Ottawa Police. Above all, the trial judge emphasized the purported seriousness of the offence — cocaine trafficking — as the factor demanding admission of the evidence. The evidence went in and Mc- Guffie was convicted. On appeal, in characteristically lu- cid fashion, Justice Doherty explained why this result couldn't stand. Egregious Charter infringements aren't mitigated by the fact that only one officer carried them out. Evidence of a systemic problem may be aggravating, but the absence of such evidence can't be a point in the "admis- sion" column. Most significantly, Justice Doherty made clear that when the "seriousness of the police conduct" and the "impact of the breach" weigh strongly in favour of exclu- sion, the "seriousness of the offence" will rarely if ever suffice to tip the balance the other way. On the merits, Justice Doherty considered this to be an "overwhelming" case for exclusion. A sustained course of police conduct evinced a total lack of con- cern for the accused's rights to be free from arbitrary de- tention, unreasonable search and seizure, and to obtain the assistance of counsel. Ex- cluding the evidence — and acquitting the accused — was the only way in which the court could "disassociate the justice system from the police misconduct and reinforce the community's commitment to individual rights." Disassociating the justice system from serious police misconduct is the exclusionary rationale given official benediction by the Supreme Court in the leading case of Grant (2009). This is a symbolic gesture and perhaps an important one, but to my mind the more compelling case for excluding evidence is to discourage similar conduct from being committed in the future. The main rea- son we should want a guilty person like McGuffie to have a remedy is to lessen the likelihood of similar unconstitutional conduct being perpetrated against the in- nocent — who after all won't be charged and will, therefore, have no forum in which to obtain redress. Call this the "de- terrence" rationale. True, deterrence has a bad name because of its overuse in the sentencing context, where it tends to lack empirical support. But there is a vast dif- ference between assuming that judicial decisions can affect criminal behaviour, which tends to be impulsive and ill in- formed, and positing that critical guid- ance provided by one branch of state power (the judiciary) to another (the po- lice) can meaningfully constrain official action. If the message doesn't get through, for whatever reason, the authorities have only themselves to blame. The role of the exclusionary remedy in controlling state overreach looms large in a case recently argued before the newly Scalia-less U.S. Supreme Court. In that case, Utah v. Strieff, police detained a suspect without legal grounds — but then ran a check and discovered he had an outstanding "warrant" for a minor traffic violation. So they arrested and searched him, finding some meth in his pocket. Should the meth be excluded as the fruit of the initial illegal stop? Or did the sub- sequent discovery of the warrant erect a halo of legality over the entire transac- tion? At oral argument, Justice Sonia So- tomayor invoked Ferguson, Mo., where a high proportion of non-white residents have outstanding "warrants" of some kind or another. What would stop police from searching anyone on a mere hunch, she asked? We've never had an exclusionary "rule" like the Americans, since s. 24(2) mandates a case-by-case balancing. But courts need something resembling a rule in order to provide predictability to liti- gants and a measure of deterrence to law enforcement. Justice Doherty's formula- tion seems to be a good start: Where the offending police conduct is both culpable in nature and significant in extent, exclu- sion should follow. LT uMatthew Gourlay handles crimi- nal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. COMMENT A Criminal Mind Matthew Gourlay Slapping the New Anti-SLAPP Legislation BY ROBERT COHEN I n October of 2015, the Ontario Legislature enacted the Protection of Public Participation Act. The Ministry of the Attorney General trumpeted the new legislation, claiming the PPPA would "allow the public to participate more freely in pub- lic discussions without fear of retribution by giving them a better way to defend themselves against stra- tegic lawsuits, commonly known as SLAPPs (Strate- gic Litigation Against Public Participation)." To that end, the legislation: (a) sets out an expedited motion procedure to dismiss a suspected SLAPP (requiring the motion "to be heard" within 60 days after the filing of the dismissal motion and limiting cross- examination to one day for each party, subject to a judge ordering an extension) with an automatic stay of the litigation pending the outcome of the motion and any appeals; (b) gives the judge the authority to order reimbursement of a defendant's "full indem- nity" legal costs of the litigation (which cost award is rarely given in typical civil proceedings); (c) permits the judge to award the defendant "such damages as the judge considers appropriate"; and (d) requires ap- peals from these dismissal motions to be "heard as soon as practicable". While the goals of the legisla- tion are laudable, will it really work? On its face, one would think the PPPA would help to promote free speech and eradicate SLAPPs; however, the legal test to succeed on a dismissal mo- tion is so vague that one could hardly take comfort that the legislation will be effective. In particular, a judge is required to dismiss a defamation claim if the defendant satisfies the judge that "the pro- ceeding arises from an 'expression' made by the person that relates to a matter of public interest." The legislation has a broad definition of the word "expression" (meaning any communication, verbal or non-verbal, private or public, and whether or not it is directed at a person or entity). Well, that covers just about every kind of communication. The PPPA does not, however, provide a definition of "matters of public interest." What are "matters of public interest" these days? No doubt the Legislature recognized the insoluble task of trying to define "matters of public interest" would be like trying to untangle the Gordian Knot — better to cut it off and leave it to others to con- template. In fairness, there are so many groups that describe themselves as champions of public causes that it would have been unwise for the Legislature to attempt to define "matters of public interest." Nonetheless, we can confidently anticipate that people who defame others in public will try to seek refuge in the "public interest" life- boat, which will ultimately raise questions as to how far the courts will go to promote public speech at the expense of private reputations. For example, can a political activist appear on televi- sion and state a public individual is a child molester so the activist can pursue an agenda of enhancing child pro- tection laws? What if the target is not a public official but the president of a private and unpopular business? A good reputation takes a lifetime to create, only to be destroyed in a moment. So what is the counterbalance in the PPPA to protect individuals from unfair reputational attacks? The PPPA expressly provides statutory direction in terms of a person seeking to oppose a defendant's mo- tion to dismiss that person's defamation proceeding. In particular, the PPPA states that a defamation claim shall not be dismissed under the PPPA if that person satisfies the judge that: "(a) there are grounds to believe that, (i) the proceeding "has substantial merit", and (ii) the de- fendant "has no valid defence" (a redundancy in the legislation as one presumably cannot meet the test of establishing that the proceeding has substantial merit if the defendant also has a valid defence); and (b) the harm likely to be suffered by the plaintiff as a result of the de- fendant's expression "is sufficiently serious that the public interest in permitting the proceeding to continue out- weighs the public interest in protecting that expression." If these provisions were enacted to give litigants and the judiciary a road map as to the legal thresholds applicable on these dismissal motions, the Legislature forgot to hit the "GPS" app. Worse still, a judge would have to pull out her own subjective scale to weigh competing interests of protecting private reputational rights against public inter- est causes. So, do we even need the PPPA? People have always been free to express their opin- ions in Canada, and to avail themselves of the fair com- ment defence, as reviewed and modified in 2008 by the Supreme Court of Canada in WIC Radio v. Simpson. Further, preliminary motions to strike have often been successfully used to protect defendants against vexatious and strategic defamation litigation in any event, with sub- stantial cost awards in favour of defendants. Putting aside whether the over-burdened Ontario courts can actually proceed with the hearing of these dis- missal motions within 60 days, as required by the PPPA, and putting aside whether a judge should order additional compensation to a defendant who has received the benefit of a "full indemnity" cost award under the PPPA, one is left to wonder whether this vague legislation will achieve its objectives or whether it will simply muddy the already murky waters of defamation law. While its intentions are good, a road paved with good intentions often leads to a very undesirable destination. LT uRobert B. Cohen is a commercial litigator and partner at Cassels Brock. u SPEAKER'S CORNER

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