On December 9, 2022, the Supreme Court rendered its decision in R. v. Beaver, 2022 SCC 54. It contains a detailed review of the power of arrest, section 24(2) of the Charter and the doctrine of a “fresh start” by police after the Charter has been infringed by them. It also contains a review of the third line of inquiry set out in Grant (societal concerns and whether the truth-seeking function of the criminal trial process would be better served by the admission or the exclusion of the evidence).
I have attached a detailed summary, which hopefully will be useful. I would note a couple of things I find particularly interesting and which may have served to open some considerable debate concerning the application of section 24(2) of the Charter.
At paragraphs 129 to 131, the Court assessed the Grant’s “third line of inquiry”. In doing so, the Court stated that “while the seriousness of the offence has the potential to ‘cut both ways’ (Grant, at para. 84), the public has a heightened interest in seeing serious offences such as manslaughter and obstruction of justice [the charges in this case] adjudicated on the merits…Excluding reliable evidence critical to the Crown’s case, such as Beaver’s confession, can also undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective, thus bringing the administration of justice into disrepute”.
The Court also stated that “where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission” (at paragraph 134).
Is the Court reassessing its jurisprudence on this topic? In earlier decisions, it had suggested that the third line of inquiry should not be overemphasized.
Interestingly, in R. v. Marakah, 2017 S.C.C. 59, for instance, after concluding that the police had seized text messages in contravention of the Charter, the Supreme Court concluded that the evidence should be excluded pursuant to section 24(2) of the Charter. In reaching this conclusion, the Supreme Court referred to is decision in Grant and indicated that “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious” it is “important not to allow… society’s interest in adjudicating a case on its merits to trump all other considerations” (at paragraph 72).
In R. v. Reeves, 2018 SCC 56, after concluding that a breach of section 8 of the Charter had occurred, the Supreme Court considered whether evidence (child pornography images) obtained as a result of the search should be admitted or excluded. The Court concluded that despite the importance of the evidence and the seriousness of the charges, the evidence was properly excluded
Similarly, in R. v. Paterson, 2017 SCC 15, the Supreme Court held that it is “important not to allow the third Grant 2009 factor of society’s interest in adjudicating a case on its merits to trump all other considerations, particularly where (as here) the impugned conduct was serious and worked a substantial impact on the appellant’s Charter right that the evidence obtained by the police was obtained in violation of section 8 of the Charter should be excluded despite the seriousness of the offences” (at paragraph 56).
Finally, in R. v. Le, 2019 SCC 34, the Court suggested that “if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence” (at paragraph 142).
The summary follows.
In R. v. Beaver, 2022 SCC 54, December 9, 2022, the accused (Beaver and Lambert) were convicted of the offence of manslaughter. After they made a 9-1-1 call, they were arrested and subsequently confessed to having killed the deceased. The Crown conceded that breaches of sections 9, 10(a) and 10(b) occurred.
When the police arrived at the residence from which the 9-1-1 call was received, they detained the accused under what they described as the Medical Examiners Act, legislation that did not exist. The Supreme Court noted that the police “had meant to refer to Alberta’s Fatality Inquiries Act, R.S.A. 2000, c. F-9, but this Act provides no detention powers” (at paragraph 10). Both accused were “cautioned” and advised of their right to contact counsel. Lambert indicted that he wanted to speak to a lawyer and did so at the police station. Beaver declined the opportunity to do so.
At the police station, detectives began to speak to Lambert. Before the interview was completed, they learned that neither Lambert not Beaver had been “arrested”. They arrested both for murder. The police spoke to Lambert again. They cautioned him, advised him that he had been arrested for murder and facilitated further contact with counsel. After Lambert spoke to counsel, he was interviewed for twelve hours. He confessed to killing the deceased (Mr. Bowers).
When the police spoke to Beaver at the police station, they repeated an earlier vague and unsatisfactory caution and advised him of his right to contact counsel. Beaver declined again to do so. Approximately thirteen hours later, he admitted to having killed Mr. Bowers during a fight.
The Supreme Court indicated that it was “not disputed that the police officers who attended the scene in response to the 9-1-1 call breached the appellants’ Charter rights by detaining them and taking them to the police station without lawful authority. It is also not disputed that when homicide detectives realized that their colleagues had unlawfully detained the appellants, they promptly tried to make a ‘fresh start’ by advising them of their Charter rights and then arresting them for murder. When questioned separately, the appellants initially denied any knowledge of how Bowers had died. Eventually, however, they both confessed to killing Bowers during a fight, mopping up his blood, and dragging his body to the bottom of the stairs to make his death look like an accident. At issue at trial was the admissibility of these confessions” (at paragraph 3).
At the trial, the trial judge ruled that the confessions were admissible. Both were subsequently convicted of the offence of manslaughter. On appeal, the Alberta Court of Appeal dismissed the accuseds’ appeals from conviction. Both accused were granted leave to appeal to the Supreme Court of Canada. The Supreme Court indicated that “[o]nly Beaver appeals the voluntariness of his confession. Both Beaver and Lambert claim that their confessions should be excluded under s. 24(2) of the Charter” (at paragraph 5).
The Supreme Court of Canada indicated that the appeals raised three issues (at paragraph 1):
(1) the voluntariness of one of the appellants’ confessions under the common law confessions rule; (2) whether the police had reasonable and probable grounds to arrest the appellants for murder; and (3) whether the appellants’ confessions were “obtained in a manner” that breached the Canadian Charter of Rights and Freedoms because the police failed to make a “fresh start” from earlier Charter breaches, and if their confessions were so obtained, whether they must be excluded under s. 24(2).
The Supreme Court’s Decision:
The appeals were dismissed. A majority (5:4) of the Supreme Court agreed “with the lower courts that Beaver’s confession was voluntary and thus admissible under the common law confessions rule”. It also agreed “that the police had reasonable and probable grounds to arrest the appellants for murder”. Finally, it concluded that “the homicide detectives made a ‘fresh start’ from the Charter breaches arising from the appellants’ unlawful detention for Lambert but not for Beaver. Thus, only Beaver’s confession was obtained in a manner that breached the Charter. Balancing the lines of inquiry under s. 24(2) of the Charter”. The majority concluded “that admitting Beaver’s confession into evidence would not bring the administration of justice into disrepute” (at paragraph 6).
Was Beaver’s confession voluntary?
The Supreme Court indicated that the “common law confessions rule provides that a confession to a person in authority is presumptively inadmissible, unless the Crown proves beyond a reasonable doubt that the confession was voluntary…The application of the confessions rule is necessarily flexible and contextual. When assessing the voluntariness of a confession, the ‘trial judge must determine, based on the whole context of the case, whether the statements made by an accused were reliable and whether the conduct of the state served in any way to unfairly deprive the accused of their free choice to speak to a person in authority’…The trial judge must consider all relevant factors, including the presence of threats or promises, the existence of oppressive conditions, whether the accused had an operating mind, any police trickery that would ‘shock the community’, and the presence or absence of a police caution. These factors are not a checklist that supplants a contextual inquiry” (at paragraphs 45 and 48).
In this case, the Supreme Court concluded that the trial judge “properly applied the relevant legal principles in deciding that Det. Hossack’s interview of Beaver raised no concern as to the voluntariness of his confession. Because Beaver has not established that any palpable and overriding error infected the trial judge’s findings of fact, I must defer to his conclusion that Beaver’s confession was voluntary” (at paragraph 68).
Did the police have reasonable and probable grounds to arrest the accused for murder?
The Supreme Court pointed out that the “police have statutory authority to arrest a person without a warrant under s. 495 of the Criminal Code, R.S.C. 1985, c. C-46. The applicable part of s. 495 in this appeal, s. 495(1)(a), allows a peace officer to arrest a person without a warrant if, on reasonable grounds, they believe the person has committed or is about to commit an indictable offence” (at paragraph 71).
The Supreme Court indicated that the “essential legal principles governing a warrantless arrest are settled” (at paragraph 72):
1. A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint (R. v. Storrey,  1 S.C.R. 241, at pp. 250-51; R. v. Latimer,  1 S.C.R. 217, at para. 26; R. v. Tim, 2022 SCC 12, at para. 24).
2. In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence (R. v. Shepherd, 2009 SCC 35,  2 S.C.R. 527, at para. 17). Subjective grounds for arrest are often established through the police officer’s testimony (see, for example, Storrey, at p. 251; Latimer, at para. 27; Tim, at para. 38). This requires the trial judge to evaluate the officer’s credibility, a finding that attracts particular deference on appeal (R. v. G.F., 2021 SCC 20, at para. 81; R. v. Beaudry, 2007 SCC 5,  1 S.C.R. 190, at para. 4).
3. The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer (Storrey, at pp. 250-51; Latimer, at para. 26; Tim, at para. 24).
4. Evidence based on the arresting officer’s training and experience should not be uncritically accepted, but neither should it be approached with “undue scepticism” (R. v. MacKenzie, 2013 SCC 50,  3 S.C.R. 250, at paras. 64-65). Although the analysis is conducted from the perspective of a reasonable person “standing in the shoes of the [arresting] officer”, deference is not necessarily owed to their view of the circumstances because of their training or experience (R. v. Chehil, 2013 SCC 49,  3 S.C.R. 220, at paras. 45 and 47; MacKenzie, at para. 63). The arresting officer’s grounds for arrest must be more than a “hunc[h] or intuition” (Chehil, at para. 47).
5. In evaluating the objective grounds to arrest, courts must recognize that, “[o]ften, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete” (R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 750, per Doherty J.A.). Courts must also remember that “[d]etermining whether sufficient grounds exist to justify an exercise of police powers is not a ‘scientific or metaphysical exercise’, but one that calls for the application of ‘[c]ommon sense, flexibility, and practical everyday experience’” (R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 22, per Fairburn J.A. (as she then was), citing MacKenzie, at para. 73).
6. “Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime (Chehil, at para. 27; R. v. Debot,  2 S.C.R. 1140, at p. 1166). At the same time, police do not require a prima facie case for conviction before making an arrest (Storrey, at p. 251; Shepherd, at para. 23; Tim, at para. 24). Nor do the police need to establish that the offence was committed on a balance of probabilities (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40,  2 S.C.R. 100, at para. 114; see also R. v. Henareh,2017 BCCA 7, at para. 39 (CanLII); R. v. Loewen, 2010 ABCA 255, 490 A.R. 72, at para. 18). Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to the offence” (MacKenzie, at para. 74 (emphasis deleted); Debot, at p. 1166). A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information” (Mugesera,at para. 114; see also R. v. Al Askari,2021 ABCA 204, 28 Alta. L.R. (7th) 129, at para. 25; R. v. Omeasoo, 2019 MBCA 43,  6 W.W.R. 280, at para. 30; R. v. Summers,2019 NLCA 11, 4 C.A.N.L.R. 156, at para. 21). The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest (Chehil, at para. 34; Shepherd, at para. 23; R. v. Ha, 2018 ABCA 233, 71 Alta. L.R. (6th) 46, at para. 34; R. v. MacCannell, 2014 BCCA 254, 359 B.C.A.C. 1, at paras. 44-45; R. v. Rezansoff, 2014 SKCA 80, 442 Sask. R. 1, at para. 28; E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (3rd ed. (loose-leaf)), at § 5:40).
7. The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest (R. v. Biron,  2 S.C.R. 56, at p. 72; R. v. Brayton, 2021 ABCA 316, 33 Alta. L.R. (7th) 241, at para. 43; Ha, at paras. 20-23; R. v. Montgomery, 2009 BCCA 41, 265 B.C.A.C. 284, at para. 27; Ewaschuk, at § 5:40).
8. When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds (Debot, at pp. 1166-67).
In this case, the Supreme Court held that the “trial judge’s factual findings confirm that Det. Vermette’s belief that the appellants were connected to Bowers’ death was objectively reasonable when he directed their arrest. Far from having a mere suspicion, Det. Vermette had compelling and credible information that the appellants had motive to kill Bowers, that they had the opportunity to act on this motive, and that Bowers’ death was suspicious” (at paragraph 81).
The Supreme Court concluded that “[e]xamining all the information before Det. Vermette — including the appellants’ motive to kill Bowers, the opportunity they had to act on this motive, and the evidence that Bowers’ death was suspicious — through the eyes of a reasonable person with the knowledge, training, and experience comparable to such a seasoned homicide detective, I conclude that Det. Vermette had objectively reasonable and probable grounds to arrest the appellants for murder. Det. Vermette’s grounds went well beyond a hunch or intuition and objectively justified his reasonable belief that the appellants were involved in Bowers’ killing” (at paragraph 88).
Should the accuseds’ confessions be excluded under s. 24(2) of the Charter?
The Supreme Court concluded that the “police breached s. 9 by unlawfully detaining the appellants at the scene and by transporting them to the police station while they were being ‘investigatively detained’ under the non-existent Medical Examiners Act. There was no basis to place the appellants under investigative detention at common law because, at the time of their detention, there was no ‘clear nexus’ between them and Bowers’ death, and it had not been established that Bowers’ death resulted from a recent criminal offence…Nor, at the time, was there statutory authority to arrest the appellants under the more onerous reasonable and probable grounds standard in s. 495(1)(a) of the Criminal Code. The police also breached s. 10(a) of the Charter by failing to give the appellants a legally valid reason for their detention and breached s. 10(b) because the appellants did not know the jeopardy they faced while they were unlawfully detained…Finally, the police breached Lambert’s s. 10(b) rights by asking him questions in the police car after he had said that he wanted to speak to a lawyer” (at paragraph 90).
The “Obtained in a Manner” Threshold Requirement:
The Supreme Court indicated that “[t]here are two components to determining whether evidence must be excluded under s. 24(2). The first component — the threshold requirement — asks whether the evidence was ‘obtained in a manner’ that infringed or denied a Charter right or freedom. If the threshold requirement is met, the second component — the evaluative component — asks whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute” (at paragraph 94).
“Fresh Start” and the Threshold Requirement:
The Supreme Court indicated that “evidence will not be ‘obtained in a manner’ that breached the Charter when the police made a ‘fresh start’ from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous. In some cases, the police may make a ‘fresh start’ by later complying with the Charter, although subsequent compliance does not result in a ‘fresh start’ in every case. The inquiry must be sensitive to the facts of each case” (at paragraph 97).
The Supreme Court indicated that “[w]hen undertaking the case-specific factual inquiry into whether the police effected a ‘fresh start’, some potentially illustrative indicators” that a trial judge should consider include (at paragraph 103):
• Whether the police informed the accused of the Charter breach and dispelled its effect with appropriate language (R. (D.), at p. 882). What constitutes appropriate language will vary with the circumstances of the case. In some cases, it may be sufficient to say, “we’re going to start over”; in other cases, more detailed or specific language may be needed to remove the taint from the earlier Charter breach;
• Whether the police cautioned the accused after the Charter breach but before the impugned evidence was obtained (Plaha, at para. 53; Hamilton, at paras. 58-59; Woods, at para. 9). Ideally, this would involve both a primary caution (“You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence” (Singh, at para. 31; Manninen,at p. 1237)), and a secondary caution (“Your decision to speak to the police should not be influenced by anything you have already said to the police or the police have already said to you” (Manninen, at p. 1238));
• Whether the accused had the chance to consult counsel after the Charter breach but before the impugned evidence was obtained (Manchulenko,at para. 69; Woods, at paras. 5 and 9; R. v. Dawkins, 2018 ONSC 6394, at para. 62 (CanLII));
• Whether the accused gave informed consent to the taking of the impugned evidence after the Charter breach (Simon, at para. 74);
• Whether and how different police officers interacted with the accused after the Charter breach but before the impugned evidence was obtained (see Lewis, at para. 32; Woods, at para. 9; McSweeney, at para. 62; I. (L.R.) and T. (E.), at p. 526; Dawkins, at para. 62); and
• Whether the accused was released from detention after the Charter breach but before the impugned evidence was obtained.
In this case, the Supreme Court concluded that in assessing whether a “fresh start” had been made, the trial judge “erred in law by failing to apply the correct legal test and by applying an incorrect legal principle” (at paragraph 104).
However, the Court concluded that the “police took several steps that collectively severed any contextual connection between the breach of Lambert’s Charter rights arising from his unlawful detention and his confession. These steps also rendered any temporal connection with the Charter breaches remote. Finally, there was also no causal relationship between the Charter breaches and Lambert’s confession. Lambert’s confession was thus not ‘obtained in a manner’ that breached the Charter…By taking the steps described above, the police ensured that Lambert’s confession was not ‘obtained in a manner’ that breached the Charter. It is therefore unnecessary to consider the evaluative component of s. 24(2) for Lambert. Since Lambert’s confession was admissible, I would dismiss his appeal and confirm his conviction for manslaughter” (at paragraphs 108 and 112).
The Court held that in Beaver’s “case it cannot be said that an intervening consultation with counsel severed any connection between the Charter breaches arising from his unlawful detention and his eventual confession”. The Court indicated that the police “failed to dissociate [their] interaction with Beaver from the earlier Charter breaches and actively maintained a contextual connection between Beaver’s initial unlawful detention and his confession. Thus, even after Beaver had been lawfully arrested and made aware of the jeopardy he faced, his confession was contextually linked to the earlier Charter breaches…Beaver’s confession was thus ‘obtained in a manner’ that breached the Charter. It is therefore necessary to consider whether it should be excluded under s. 24(2) of the Charter” (at paragraphs 113 to 115).
Section 24(2) of the Charter:
The Supreme Court indicated that “[s]ection 24(2) of the Charter is not an automatic exclusionary rule precluding the admission of all unconstitutionally obtained evidence. Such evidence will only be excluded when the accused establishes that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute…Balancing the relevant considerations under s. 24(2) is a qualitative determination that is not capable of mathematical precision” (at paragraph 117).
The Supreme Court described the nature of the three lines of inquiry required by section 24(2) in the following manner (at paragraphs 120, 123 and 129 to 131):
The first line of inquiry under s. 24(2) considers whether the Charter‑infringing state conduct is so serious that the court needs to dissociate itself from it. This inquiry requires the court to situate the Charter-infringing conduct on a scale of culpability. At one end of the scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake. The more severe the state’s Charter‑infringing conduct, the greater the need for courts to disassociate themselves from it.
The second line of inquiry under s. 24(2) considers the impact of the Charter breach on the accused’s Charter-protected interests. This inquiry involves identifying the interests protected by the relevant Charter right and evaluating the extent to which the Charter breach “actually undermined the interests protected by the right” (Grant, at para. 76). As with the first line of inquiry, the court must situate this impact on a spectrum. The greater the impact on the accused’s Charter-protected interests, the greater the risk that admission of the evidence would suggest that Charter rights are of little actual avail to citizens, thus breeding public cynicism and bringing the administration of justice into disrepute.
The third line of inquiry under s. 24(2) considers societal concerns and asks whether the truth-seeking function of the criminal trial process would be better served by the admission or the exclusion of the evidence (Grant, at para. 79). Relevant factors under this inquiry include the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence at issue… while the seriousness of the offence has the potential to “cut both ways” (Grant, at para. 84), the public has a heightened interest in seeing serious offences such as manslaughter and obstruction of justice adjudicated on the merits…Excluding reliable evidence critical to the Crown’s case, such as Beaver’s confession, can also undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective, thus bringing the administration of justice into disrepute.
The Supreme Court indicated that the “final step in the s. 24(2) analysis involves weighing each line of inquiry to determine whether admitting the evidence would bring the administration of justice into disrepute. This balancing has a prospective function: it aims to ensure that evidence obtained through a Charter breach does not cause further damage to the justice system. It is also societal in scope: its goal is not to punish the police but to address systemic concerns involving the broad impact of admitting the evidence on the long‑term repute of the justice system… It is possible that admitting evidence obtained by particularly serious Charter-infringing conduct will bring the administration of justice into disrepute, even if the conduct did not have a serious impact on the accused’s Charter-protected interests (Le, at para. 141). But where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission” (at paragraphs 133 and 134).
The Supreme Court concluded that “the third line of inquiry is central to the s. 24(2) weighing exercise in this case. The first two lines of inquiry, taken together, do not make a strong case for excluding Beaver’s confession. Only the seriousness of the Charter breaches strongly favours exclusion. The second line of inquiry pulls neither towards nor against exclusion because the breaches had minimal impact on Beaver’s Charter-protected interests. The cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting Beaver’s confession. This evidence is crucial to the prosecution’s case against an offender who allegedly killed another person and then tried to obstruct the police investigation. On a proper balancing of the lines of inquiry under s. 24(2), I conclude that admitting Beaver’s confession would not bring the administration of justice into disrepute” (at paragraph 135).
The Minority Judgment:
On behalf of the minority, Justice Martin indicated that she parted “ways with the majority on two points” (at paragraphs 139 and 140):
First, on whether it was lawful for the lead investigator, after learning of the circumstances of the appellants’ unlawful detention, to immediately arrest them for murder and direct their continued questioning. I conclude that the information relied on to direct the appellants’ arrests does not come close to the particularized probability required to meet the reasonable grounds standard. The arrests were a blatant attempt to salvage the investigation in the face of what officers knew were multiple serious violations of the appellants’ Charter rights. The accumulation of breaches of well-established Charter standards in this case requires that the evidence be excluded as a remedy under s. 24(2) of the Charter to avoid bringing further disrepute to the administration of justice.
Second, the test for inclusion under s. 24(2) is long established and well known. The focus is on the connection between the breach and the evidence obtained, with reference to temporal, contextual, and causal elements…There is simply no need to speak in terms of whether or not there was somehow a “fresh start” for those who have breached Charter rights. Indeed, the notion of a “fresh start” is an unhelpful and potentially misleading concept that has no place in the s. 24(2) analysis. It divides what is to be a holistic analysis into before and after segments and operates to cure and/or remove Charter breaches from the analysis, thus placing a heavy finger on the scale of s. 24(2).