R v Beaver: A “fresh start” for the Charter’s section 24(2) test?
Laura Cameron, 3L, Volume 81 Articles Editor
If an individual has been unlawfully detained and questioned, can the police announce, midway through the interrogation, that they are going to “start everything all over again,” and with that insulate the rest of the investigation from their earlier Charter-infringing conduct?
In R v Beaver, 2022 SCC 54 (Beaver) (CanLII) (Beaver), a five-member majority of the Supreme Court of Canada (SCC) answered this question in the affirmative. In the following comment, I summarize the case and the SCC’s discussion of the “fresh start” principle within the test for exclusion of evidence under section 24(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 (Charter), and then offer some thoughts on the decision’s significance. Beaver marks the first time the concept of a “fresh start” has been fully recognized by the SCC, and I share the dissent’s concerns about how it might be misapplied.
The Facts of the Case
Beaver began with a landlord lying in a pool of blood at the bottom of the stairs of his Calgary townhouse, and two roommates placing a suspicious call to the police. The roommates, Brian John Lambert and James Andrew Beaver, stated that they had gone out the previous night to avoid an altercation with the deceased, and had returned home to find him in this position (Beaver at para 8).
When the police arrived, one officer detained Lambert under what he referred to as the “Medical Examiners Act”—legislation that does not exist. He later stated that he had meant to invoke Alberta’s Fatal Inquiries Act, RSA 2009, c F-9, but that statute does not provide detention powers. The officer cautioned Lambert that any statements may be used as evidence, and informed him of his right to counsel. Lambert asked to speak with a lawyer. During the drive to police headquarters, however, the officer ignored this request and questioned Lambert on what had happened. Another officer detained and questioned Beaver, stating, “I am investigatively, detaining you for, uh, whatever’s going on in there, (laughing)” (Beaver at paras 10–14). At this point, neither Lambert nor Beaver had been formally arrested or charged with any crime (Beaver at paras 12, 14). The Crown conceded that Lambert and Beaver’s ss. 9, 10(a), and 10(b) Charter rights had been breached during these encounters (Beaver at para 34).
At the police headquarters, the senior detective in charge learned that neither Lambert nor Beaver had been arrested, and immediately directed that they should be arrested for murder. The detective questioning Lambert subsequently attempted to distance the interrogation from the earlier breaches by repeating the caution and stressing that they were going to “start from the very beginning” (Beaver at paras 23–24). After over 12 hours of questioning, Lambert confessed that the deceased had died during a fight with him and Beaver. The police then showed Lambert’s recorded statement to Beaver, who, after another hour of aggressive interrogation, made a matching confession (Beaver at paras 28–30). Both were eventually convicted of manslaughter, and their appeals were dismissed by the Court of Appeal of Alberta (Beaver at paras 37, 39).
There were three issues on appeal to the SCC: first, whether Beaver’s confession was voluntary; second, whether the police had reasonable and probable grounds to make the arrests; and third, whether the appellants’ confessions should have been excluded under s. 24(2) of the Charter (Beaver at para 42). The majority answered “yes” to the first two questions and “no” to the third. I will focus solely on the third issue.
Section 24(2) of the Charter
Section 24(2) requires the exclusion of evidence “obtained in a manner” that infringed any rights or freedoms if the admission of the evidence “would bring the administration of justice into disrepute.” Impugned evidence is assessed according to a two-part test. First, at the threshold stage, the court asks whether there is a temporal, contextual, or causal relationship between the rights breach and the collection of evidence that is neither remote nor tenuous (Beaver at para 96). Second, at the evaluative stage, the court assesses the seriousness of the Charter-infringing conduct, its impact on Charter-protected interests, and society’s interest in having the case adjudicated on its merits, to decide whether admitting the evidence would tarnish the justice system in the public’s eyes (R v Grant, 2009 SCC 32 (CanLII) at para 71).
The jurisprudence is clear that evidence will be tainted if the breach and discovery are “part of the same transaction or course of conduct” (Beaver at para 96). The question in this case was whether police can sever this “course of conduct” by making a “fresh start,” unmooring the later-obtained evidence from the earlier violation so that the connection between them becomes remote or tenuous.
A line of cases from the Court of Appeal for Ontario seem to have accepted that, as Watt JA put it in R v Manchulenko, 2013 ONCA 543 (CanLII) (Manchulenko), “investigators may attempt a ‘fresh start’ in order to insulate [new evidence] from the taint that rendered the earlier [evidence] inadmissible” (para 68). In R v Wittwer, 2008 SCC 33 (CanLII) (Wittwer), Fish J wrote on behalf of the SCC that police could, in theory, make a “permissible fresh start” (para 3, emphasis removed), though they had not done so on the facts of that case. The SCC, therefore, had not previously found a fresh start capable of severing the nexus in the s. 24(2) test. But in Beaver, while the dissent maintained that the “fresh start” had not been established as an accepted doctrine in Canadian law, the majority assumed that it had, and sought to refine its definition in applying it to the circumstances at hand.
The Majority on the “Fresh Start”
In solidifying the position of “fresh starts” at the threshold stage of the s. 24(2) analysis, the majority was careful to emphasize that the focus remained on the nature of the connection between the rights violation and the collection of evidence (Beaver at para 99). Jamal J, writing for Wagner CJ and Moldaver, Rowe, and Kasirer JJ, offered a list of “potential indicators” to guide courts in determining whether intervening conduct has rendered a contextual link remote or tenuous. For example, courts may consider whether the police told the accused about the breach, whether the accused gave informed consent to the taking of the evidence, and whether the accused was released from detention (Beaver at para 103).
Applying these indicators to the facts of the case, Jamal J found that the homicide detective interrogating Lambert had taken several steps that collectively severed the contextual connection between the breaches and the evidence. These steps included repeating that they were going to “start from the very beginning,” that Lambert was under arrest for murder, that he had a right to counsel, and that he did not have to say anything. Since, in the majority’s view, there was also no temporal or causal connection between the breaches and the evidence, Jamal J held that Lambert’s confession was not “obtained in a manner” that violated the Charter, and so he did not need to move to the evaluative stage of the s. 24(2) analysis (Beaver at paras 108–12).
Beaver’s confession, by contrast, was obtained in a manner that violated the Charter, since the homicide detective questioning him after his arrest referred to the earlier unlawful interaction, telling Beaver that it was “no different” now (Beaver at para 25). The Court found that the detective had therefore “actively maintained a contextual connection” (Beaver at para 115). However, Jamal J held that admitting Beaver’s confession as evidence would not bring the administration of justice into disrepute (Beaver at para 135). Both confessions were therefore admitted, the appeals dismissed, and the convictions upheld.
The Dissent on the “Fresh Start”
In a strong dissent, Martin J, writing on behalf of Karakatsanis, Côté, and Brown JJ, concluded that both Beaver’s and Lambert’s confessions should have been excluded under s. 24(2) of the Charter. She held that the concept of “fresh start” is misleading because it disrupts the holistic “obtained in a manner” analysis (Beaver at paras 192, 198). As a threshold test, the “obtained in a manner” analysis is supposed to be an easy bar to meet—the real work should occur when the court considers whether admitting the evidence would bring the administration of justice into disrepute. Allowing the “fresh start” to break the analysis into ‘before’ and ‘after’ permits police to shield earlier infringements through subsequent compliance and could “prevent courts from even considering the seriousness of the Charter-infringing conduct” (Beaver at para 200). The majority, in Martin J’s opinion, fell into this very trap: although Jamal J rejected the trial judge’s conclusion that police can “cure” a breach, his list of potential indicators offers examples of police conduct that is intended to do just that (Beaver at para 201).
The dissent held that in this case there was a strong temporal, contextual, and causal connection between the breaches of the appellants’ rights and their later statements. Martin J pointed out that both Lambert and Beaver were “under the continuous control and supervision of the police” from their unlawful detentions to their eventual confessions 12 hours later. The police advising Lambert that they were going to “start everything all over again,” in Martin J’s view, did “nothing to relinquish the firm grasp they continued to hold on him” (Beaver at para 203). The dissent found that the appellants’ statements passed the threshold stage of the s. 24(2) test and should have been excluded at the evaluative stage.
Discussion
The majority’s decision in Beaver marks the first time that the SCC has found that police, upon realizing their Charter breaches, managed to sever the contextual, temporal, or causal connection between the violation and the evidence subsequently obtained. I agree with Martin J’s dissent that Fish J in Wittwer did not intend to establish the “fresh start” as a binding principle, but rather “used a colloquial description of what police were trying to do” (Beaver at para 197). His placement of quotation marks around the phrase could suggest that he was building on Doherty JA’s use of the term in R v Plaha, 2004 CanLII 21043 (ONCA), [2004] OJ No 3484 (para 53)—but given that Fish J did not cite that case or otherwise explain the concept, the quotation marks more likely signal the expression’s informal register (Wittwer at para 2). In my view, lower courts that have taken up the concept have misconstrued Fish J’s descriptive phrase by suggesting that police officers can purposely take actions in the course of an investigation to counteract any previously committed Charter violations (see, for example, Manchulenko at para 68 and R v Simon, 2008 ONCA 578 (CanLII) at para 69). The opportunity for a “fresh start” that Fish J described in Wittwer occurred when the police arrested Wittwer on entirely different charges five months after he had given inadmissible statements and attempted to question him again on the earlier charge. It was not a matter of backtracking or reorienting within the course of a single one-day investigation.
Of course, insofar as the police might take actions that affect the contextual, temporal, or causal nexus between the breach of Charter rights and the impugned evidence, these actions can be considered as part of the holistic “obtained in a manner” analysis: the majority and dissent in Beaver ultimately agree on this (Beaver at paras 99 and 198). The problem is not that police can never correct an investigation that has begun to veer off course—the problem is that the concept of the “fresh start” might lead the analysis off course, encouraging findings that previous Charter infringements are no longer relevant. The phrase “fresh start” can be useful for describing behaviour, but it “creates many deep pitfalls,” in Martin J’s words, as an analytical tool (Beaver at para 194).
A more appropriate place for considering subsequent Charter-compliant conduct is the evaluative stage of the s. 24(2) test. Efforts to ensure that rights are respected after previous errors might in some circumstances illustrate good faith on the part of police. If those later efforts are effective, this might provide evidence that the Charter-infringing conduct was not overly serious and the Charter-protected interests were not gravely affected. There are certainly scenarios in which the public interest in having a case evaluated on its merits would weigh in favour of admitting evidence where police made an earnest attempt to respond to any rights violations. But this does not mean that the violations never occurred. As Martin J wrote, “[t]here is no ‘focussed and powerful antidote’ that can erase conduct violating the Charter” (Beaver at para 201, quoting Simon at para 70). Raising the threshold by contemplating such erasure at the first stage of the test means that some police misconduct, such as detaining Lambert under non-existent legislation, will never be considered for its effect on the administration of justice. Introducing a concept that shelters such behaviour from review is antithetical to the remedial purpose of s. 24(2) (Beaver at para 202). One hopes that the majority of the SCC will make a “fresh start” in this area the next time it comes before them.