In addition to the criminal, evidence and advocacy courses I teach, I also teach 1Ls Legislation. Statutory interpretation looms large in that course. One of the analytical tools used in interpreting a statute, albeit in the context of the modern approach, is the concept of absurdity. If the plain reading of the statute would result in an absurdity, then the Courts will look for other interpretations consistent or harmonious with the context and scheme of the Act. Absurdity is a powerful interpretative tool and fits nicely in the legal trope: Law is reasoned and reasonable. It is also logical and helpful. Law is not absurd. This concept of absurdity transcends statutory interpretation and is an overarching principle of law generally. The proper response to Dickens’s Mrs. Bumble should therefore be: the law is not “a ass.” With the recent release of R v Jones, the Court clears up a true absurdity or as Justice Côté for the majority puts it, a “catch-22” situation, relating to whether Jones has standing to argue the Charter issue. Better yet, the Supreme Court clears up this concerning conundrum with the powerful and triumphal use of the presumption of innocence. This summarizes in a nutshell why the recent Supreme Court decision in Jones is a welcome addition to s. 8 case law.
The decision does not have the powerful punch found in the companion decision of Marakah, but it has “legs.” What is this “major major” issue? Put simply, according to previous case law (R v Edwards, 1996 SCC), in order to engage a justiciable Charter issue, the accused must establish a reasonable expectation of privacy (REP) in relation to the thing seized. It must be remembered that s. 8 protects people not places or things. The purpose of the right to be secure from unreasonable search and seizure is to maintain an acceptable societal balance between an individual’s right to be free from state intrusion and the state’s need to intrude into an individual’s private life to maintain public safety and law enforcement. This “push-me pull-you” sense of balance is constantly being recalibrated by the courts in an effort to protect core democratic values underlying the Charter. This recalibration cannot be done in a vacuum but within the context of what currently matters to us as a society. In our courts, context is everything: from the meta-analysis of statutes as found in the modern approach to statutory interpretation to the specific flexibly-applied factors in the REP analysis. In order to argue REP, the accused must be literally or metaphorically standing in ground zero or in the circle of impact. If outside this Charter imbued impact zone, the accused cannot be aggrieved and cannot argue for exclusion of the evidence under s. 24(2).
Typically, it is not difficult to draw a circle of impact around the accused, particularly if the search or seizure are items personally connected to the accused. What does raise standing difficulties is where identity or ownership is in issue. Here’s the rub: once you admit you have standing, as in “you are the person sending the text messages about trafficking in firearms,” you cannot ethically suggest at trial “you are not the person sending the text messages about trafficking in firearms.” This Schrödinger’s cat-like conundrum requires counsel to make tactical decisions which may chip away at an accused’s right to make full answer and defence. The accused by taking the “not me” position is in essence giving up the right to argue a Charter violation. The Jones decision thankfully challenges that presumption and fixes it.
First, let’s start our analysis with the Edwards decision. In that decision, the majority, authored by Justice Cory, were less than impressed with the accused’s position on appeal, which was markedly different than at trial on the issue of ownership. The accused at trial testified that the drugs found in a third-party’s apartment were not his drugs. That position was maintained in the appellate court. It was only in the Supreme Court of Canada that the accused changed a “fundamentally important aspect of the evidence” in admitting that the drugs were indeed his property. This could not be countenanced as by changing the position the Appellant was relying on a different aspect of the REP, namely privacy in the drugs as opposed to REP in the apartment where the drugs were located.
In Jones, the situation was different. The accused did not lead any evidence he was the author and sender of the message. Instead, the defence relied on the Crown’s “theory” that the accused was the author and sender. The application judge found the accused could not rely on speculative “evidence” and therefore he had no standing to raise the s. 8 issue. But, as mentioned, how else could the defence advance a pressing Charter argument without compromising the defence? A legitimate goal of a trial is to put the Crown to the test of its case and to require the Crown prove all essential elements of the offence beyond a reasonable doubt. One of those elements is identity of the owner of the illegal item. If identity is in issue, the defence cannot “have its cake and eat it too” by arguing in the alternative. Once an admission is made on an essential element such as identity of the owner, it is an admission of fact that cannot be admitted for limited purposes only. Law, ethics and the Charter prohibit such a paradoxical stance.
Justice Côté recognizes the unfairness inherent in the standing paradox and soundly rejects the absurdity of the outcome. At paragraph 19 she approves of the defence’s reliance on the Crown’s theory as a foundation for the Charter argument and leans on a purposive, normative approach to the paradox. This approach involves two strands invoking the low hurdle required to overcome the subjective component of the REP analysis and invoking the Charter itself.
First, some background on the REP factors, which are situated in and viewed through the factual circumstances of the case. The factors are a tailored-made, come-as-you-are assessment. Yet, it is an assessment that must be nestled in the social fabric. In a previous blog posting (also a podcast!) on s. 6 of the Criminal Code – the codification of the presumption of innocence – I alluded to the golden thread metaphor of that presumption. That concept of the golden thread, arising from Lord Sankey’s decision in the Woolmington case, maintains the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt by conceptually weaving the presumption of innocence into our social fabric. Similarly, Justice Côté’s solution to the standing paradox connects back in web-like fashion to the presumption of innocence. It does so through an acknowledgment of the generous interpretation of the REP factors as normative ones and through the protective nature of the Charter right against self-incrimination under s. 13.
The nexus point for these justifications to permit an accused to have section 8 standing even where they deny connection to the offence is that golden thread of innocence. It is nice to see its triumphal return as a recognition of the normative values we hold. It is also an essential reminder that at the heart of the REP analysis is the preservation of those societal values. In many ways, section 8 principles and the section 8 analysis of those principles serve as a perfect view into the justice system with the golden thread as the ultimate symbol of why the right of the state to intrude into our lives must be tempered by the right of an individual to be free from such intrusion.