McGILL LAW JOURNAL
Volume 16
Montreal
1970
Number ]
Law Enforcement and the Conflict of Values
Alan W. Mewett*
On June 1st, 1965, the Canadian Committee on Corrections was
appointed under the chairmanship of the Hon. Mr. Justice Roger
0uimet and comprised, in addition to the Chairman, a ‘lawyer, G.
Arthur Martin, Esq., Q.C., a retired R.C.M.P. officer, Mr. J. R.
Lemieux, a social worker, Mrs. S. P. McArton and the Executive
Secretary of the Canadian Corrections Committee, Mr. W. T.
McGrath. It reported to the Solicitor General four years later in
March 1969.’
The terms of reference were to “study the broad field of correc-
tions, in its widest sense, from the initial investigation of an offence
through to the final discharge of a prisoner from imprisonment or
parole… but excluding consideration of specific offences except
where such consideration bears directly upon any of the above
mentioned matters.”12
The Report rests upon eight basic principles that are set out,
with little elaboration, in Chapter 2. There probably would be little
quarrel with any of these basic principles, and since the terms of
reference excluded consideration of specific offences, it is under-
standable that the committee did not enlarge upon them. The fourth
principle is expressed as follows:
* Professor of Law, University of Toronto.
‘Report of the Canadian Committee on Corrections. Toward Unity: Criminal
Justice and Corrections. (Queen’s Printer. Ottawa, 1269). Hereafter referred
to as Report.
2 Ibid., at p. 2.
McGILL LAW JOURNAL
[Vol. S6
No conduct should be defined as criminal unless it represents a serious
threat to society, and unless the act cannot be dealt with through other
social or legal means. 3
This represents a fundamental premise of the rest of the Report
and one that is frequently overlooked in piece-meal legislation. Indeed,
legislators too easily assume that undesirable acts, merely because
they are undesirable, are proper subjects for criminal legislation
without any adequate consideration being given to the question of
whether there are not more desirable methods of minimizing the
harm from those acts.
The bulk of the recommendations is contained in Chapters 5 to
some 400 pages, and it is with the substantive recommendations
25 –
of Chapter 5 that I should ‘like to deal. Chapter 5 relates to the
Investigation of Offences and Police Powers and is from many
points of view, the most interesting and important. It begins with
an analysis of the role of the police and a survey of existing police
powers, and that part presents a fair picture of the balancing of the
interests of the community and the interests of the individual. It
goes on to consider four areas of difficulty which call for further
comment. These are (1) the problem of self-incrimination, (2) the
rules relating to illegally obtained evidence, (3) the situation where
the police instigate the commission of .an offence and, (4) electronic
eavesdropping and the invasion of privacy.
It’ is not necessary to expatiate on any Hohfeldian analysis of
rights and duties and powers and privileges but a confusion does
exist that obfuscates the whole area of community interests and
individual rights. When one refers to the “right” of the individual,
one necessarily implies that others (in particular, in this context,
the police) have “no right” to violate that right. Thus one has the
“right!’ not to be arbitrarily arrested and the police have “no right”
to arrest arbitrarily.
On the other hand, in the vast majority of their everyday
activities, the question of whether the police have the “right” to
act does not arise because no one else’s rights are being infringed.
It is incorrect to refer to the police “right” to interrogate a suspect
because the suspect has no right not to be questioned. He has, it is
true, a right not to be compelled to reply but no right not to be asked.
In fact, the police have the power to interrogate anyone they please.
Thus the question at the root of both this problem and a number
of similar problems that will be discussed later is not whether the
police have the right to act in a certain manner, but whether the
3 Ibid., at p. 12.
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LAW ENFORCEMENT AND THE CONFLICT OF VALUES
3
person in respect of whom they are acting has the right not to have
them act in that way.
An individual’s right means a legally protected interest, but the
way in which that interest is protected differs in the case of different
rights. The interest may be protected by meams of a civil action or a
criminal prosecution; it may be protected by giving him a defence
to a criminal charge that he otherwise would not have had. For
example, a person has a “right” not to be arbitrarily arrested. The
consequence of a violation of that right is to give rise to a civil action
for damages, or, in some cases, a criminal prosecution. A person
who has been forced to make a confession by being assaulted, not
only has those rights, but, in addition, is given an evidentiary
advantage of having that confession excluded. However,
if the
confession is induced by means of an improper inducement, the
only protection is evidentiary in nature. On the other hand, an
individual has no legally protected interest in being tricked into
making a confession. If he confesses in such a manner, no “right”
has been infringed.
Thus two fundamental questions arise. The first is the extent
of the individual’s right vis-h-vis the police. That is to say, what
rights does he have to prevent the police from acting in a certain
way? The second question is, given that the right exists, what is
the most desirable means of protecting that interest in order best
to make it meaningful –
a right to sue for damages or to achieve
some advantage not otherwise available to him?
One cannot really deny, it is suggested, that -a conflict of values
has arisen -as a result of a number of factors that have come into
existence within the last hundred years or so. Technological advances
have aided not only the investigation of offences but also their
commission and the offender is less likely to be bothered by legal
or moral scruples in making full use of them. The telephone and
the motor car have facilitated the creation of criminal organizations
without necessaily facilitating their apprehension to a corresponding
degree. The criminal law itself diverges,
in some respects, from
current mores, though there is, of course, considerable disagreement
as to the extent of this divergence. For these, and doubtless other
reasons, the conflict of values is usually stated as some variation
of the theme: the rights of the individual as opposed to the rights
of the community. It seems to me preferable, for the reasons stated,
to put the conflict in terms of asking what rights should the
individual have against everyone else (including, of course, the police)
and how best should these rights be protected, but “protected” not
McGILL LAW JOURNAL
[Vol. 16
necessarily in the sense of enforcing them so as to nullify all conse-
quences of their violation.
The Committee recommends legislation to embody the following
principles:
(1) The court may, in its discretion, reject evidence which has been illegally
obtained.
(2) The court in exercising its discretion to either reject or admit evidence
which has been illegally obtained shall take into consideration the
following factors:
(i) whether the violation of rights was wilful or whether it occurred
as a result of inadvertance, mistake, ignorance or error in judgment.
(ii) whether there existed a situation of urgency in order to prevent
the destruction or loss of evidence or other circumstances which
in the particular case justified the action taken.
(iii) whether the admission of the evidence in question would be unfair
to the accused.
(3) The legislation should provide that the discretion to reject evidence
illegally obtained provided for by such legislation does not affect the
discretion which a court now has to disallow evidence if the strict
rules of evidence would operate unfairly against an accused. 4
A number of comments can be made on these proposals and
most, if not all, are critical. There is a discernible trend to attempt
to simplify the more complex rules of evidence by adopting a broad
rule of inclusion or exclusion and subjecting this rule by what is
usually referred to as the court’s discretion to admit or refuse the
evidence, as the case may be, in certain circumstances. This can be
seen in the American proposed Model Code of Evidence and in the
proposed Uniform Rules 5 and in Canadian decisions.0 It is a simple
method of tackling evidentiary rules that have become so complicated
as to defy all reasonable efforts at definition. However, there are
three grave objections to relying to a too great extent on judicial
discretion to formulate rules of evidence. In the first place, it must
be remembered that most criminal trials in this country are before
a magistrate (or provincial judge) sitting without a jury. In some
cases, it is unavoidable that he will have to hear evidence, on a
voir dire, in order to rule on its admissibility. One hopes that
magistrates are sufficiently trained to be able to erase such facts
from their consideration in the event that the proposed evidence is
ruled inadmissible. Certainly, there is no reason to suggest that they
do not do their best. Nevertheless, it is generally undesirable to put
the trier of fact in this position, and examples should not be allowed
4 Ibid., at p. 74.
5 E.g., rule 64.
6 R. v. Wray, unreported judgment of the Ontario Court of Appeal, 1069.
No. 1]
LAW ENFORCEMENT AND THE CONFLICT OF VALUES
5
to proliferate, particularly in situations where they are likely to
arise with some degree of frequency on extremely important issues.
In the second place, evidence is inextricably tied up with practice
and procedure. The law cannot be absolutely certain, but preparation
for trial must depend upon being able to make a reasonable assessment
of what evidence will go in and what will be kept out. Both defence
counsel and crown counsel are put in a difficult position whenever
there can not be any reasonable prediction, and the more emphasis
there is on judicial discretion the less certainty there can be in
advance.
Finally, it is very -difficult for any appellate tribunal to interfere
with the exercise of judicial discretion. Courts of Appeal, and rightly
so, control the basis for the exercise but are most reluctant to
interfere in the way it was exercised. Something as important as
the admissibility of what in all probability is going to be a crucial
piece of evidence should be subject to a complete ruling by an appellate
tribunal, not only as to the guidelines for the exercise of discretion,
but also as to the ultimate question of actual admissibility.
Even apart from these criticisms, the recommendation implies
an interesting approach to the existence of a “right” not to have
disclosed illegally obtained evidence. It appears to depend not only
on whether the evidence was in fact illegally obtained, but also on
the subjective motives of the person illegally obtaining it. The right
appears to be less highly regarded if the police officer acted mis-
takenly or under some emergency, than if he acted deliberately.
One may ask whether this is an example of attempting to use
the rules of evidence in order to control police practices rather than
in order to protect the individual, for it seems to me that it makes
very ‘little difference to the accused if the police acted honestly but
illegally or if they acted dishonestly and illegally. I have elsewhere 7
elaborated on my views on the mistaken attempts to use the rules
of evidence to control police conduct –
the supreme example of
which is, I suppose, Miranda v. Arizona.” The rules of evidence
exist to control the admissibility of facts from which inferences
are drawn during the trial process. In
the present context, the
most important aspect of this is to protect the, accused. There axe
other devices, and many of them, that more effectively control police
practices. The Committee, in fact, is hedging. It states :9
7 A.W. Mewett, Proof of Guilt in a Changing Society, (1967-68), 10 Cr. L. Q.
270.
8 384 U.S. 436
9 Report, loc. cit., at p. 74.
(1,965).
McGILL LAW JOURNAL
[Vol. 16
The Committee considers that an inflexible rule which requires the rejection
of all evidence illegally obtained is neither necessary or (sic) desirable.
It then states what has always been a perfectly clear principle,
at least from the time of Kuruma, Son of Kaniu V. R., 10 namely that
the court has power, in the exercise of its discretion, to reject illegally
obtained evidence under certain circumstances.
Of course, there is no question but that an accused has the
“right” not to have facts illegally obtained. The use of the word
“illegally” must connote a “right”. The question is whether the
existing method of protecting that right (by action for assault or
trespass or whatever is appropriate, after the event) is adequate.”
It is suggested that if it is not ,appropriate to use the rules of evidence
indiscriminately to control police practices, as I have submitted, then
the argument against the ‘admission of such evidence cannot be based
upon the assertion that it is irrelevant or will lead to abuse by the
police. Thus the only case that the Committee can really make out
against its admission is that it is unfair.
“Fairness” or “unfairness” are relative concepts and it can
equally well be argued that it is unfair to the community to exclude
evidence that is directly relevant to the guilt of the accused because,
in the process of obtaining it, some legally protected interest of
the accused has been infringed. The unfairness to the accused arises
not because the system or the community or the law does not give
him a right, but because an individual –
has
violated that right. The accused clearly has a right of redress
against that individual. This, of course, is an entirely different
situation from a forced confession and an entirely different situation
from that in which the unfairness to the accused arises because of
the abuse of the legal process itself. Given the overriding discretion
in Kuruma, it seems preferable not to tamper with the existing law
on the admissibility of illegally obtained evidence.
the police officer –
Perhaps this problem is intimately connected with what is use-
fully but imprecisely called the privilege against self-incrimination.
Like all legal clich6s, this, too, tends to be highly misleading and
it is to be regretted that the Commission does not devote more
study to it and its ramifications beyond noting, “it appears to the
Committee that the privilege against self-incrimination is deeply
involved in the feeling of justice or fairness with which contemporary
Canadian society reacts to our criminal process.”’12
10 [1055], 2 W.L.R. 223.
11 It cannot be the law of evidence that prevents the police from acting in
any way they please if they are not concerned with the admission of evidence.
12 Report, loc. cit., at p. 54.
No. 1]
LAW ENFORCEMENT AND THE CONFLICT OF VALUES
7
Perhaps no phrase is bandied about with more imprecision and
with more unawareness of its legal and social significance than the
privilege against self-incrimination, unless perhaps it be the phrase
that everyone is presumed to be innocent until proven guilty. It is
unnecessary to repeat Wigmore’s classic examination of the history
of the self-incrimination privilege,’3 much of which is inextricably
interwoven in the struggle for jurisdiction between the ecclesiastical
courts and the royal courts. More germane, for our purposes, was
the simple question of under what circumstances should an individual
be forced to answer questions that might incriminate him. Should
he be compelled only after some proper form of accusation such as
a presentment or bill of indictment or was the criminal process
going to be allowed to “degenerate into a merely unlawful process
of poking about in the speculation of finding something charge-
able ?” 14
The Star Chamber with its inquisitorial methods permitted the
compulsory examination, both of the defendant and of witnesses,
the subject matter of which ranged far beyond the precise offence
alleged. The examination was, in fact, the excuse for a wide-ranging
interrogation. In 1637,15 John Lilburn was charged before the Star
Chamber, but refused to answer any questions about alleged offences
apart from the one for which he was currently on trial. For this
contumely, he was whipped and sentenced to the pillory. Ultimately,
the House of Lords held that the sentence be “totally vacated…
as illegal and most unjust, against the liberty of the subject and law
of the land and Magna Chart”. Lilburn received 3,00 in compen-
sation –
no small sum in those days. 16
However, after LilburWs Case, the emphasis shifted. Lilburn made
no claim not to answer incriminating questions –
only those not
properly presented, of which he was not properly accused. Certainly,
there seems little evidence 17 that previously there had ever been
any privilege against refusing to testify, or to take oath, or answering
questions relating to the offence with which the accused stood
charged. Coke’s usual facile adoption of a convenient Latin tag (in
this case, nemo seipsum tenetur prodere) now became responsible
for a generalized claim not only to be free from fishing expeditions
in an inquisitorial process but to be free from answering incriminating
‘3 Wigmore on Evidence, (.1061 ed.), Vol. VIII, 2250, p. 266.
14 Ibid., at p. 276.
15 3 How. St. Tr. 1315.
‘6 Wigmore, op. cit., at p. 283.
17 Ibid., at pp. 284-289.
McGILL LAW JOURNAL
[Vol. 16
questions, even when properly indicted. By 167918 even a witness
could successfully claim what has finally become a privilege. It is
worth quoting Wigmore at length at this stage:
So the interesting question is, how did this result come about? How did
a movement which was directed, originally and
throughout, against a
method of procedure in ecclesiastical courts, produce in its ultimate effect
a rule against a certain kind of testimony in common law courts? The
process of thought, popular and professional, is to be accounted for. Now,
for our history of legal ideas we do not ordinarily expect to go to Bentham.
But he was the first to search into this history, and to maintain that this
common law privilege did not antedate the Restoration; and,
in this
instance, his explanation of the process of thought by which the trans-
mutation
took place seems fairly to represent the probabilities. That
explanation lies in the principle of the association of ideas –
an association
which began to operate immediately in the reactionary period of the
Restoration and the Revolution, when the growth and ascendancy of Whig
principles involved all the Stuart practices in one indiscriminate and radical
condemnation.19
The Committee appears to adopt the popular concept of the
privilege –
vague and nebulous in scope. It appears to accept with
equanimity the abolition of the privilege against answering incrimi-
nating questions, while testifying on oath in a court to which the
Evidence Act applies and the substitution therefore of the limited
protection afforded by the provision that only his answers may not
be used in subsequent proceedings. 20 The Committee states, in italics,
indeed:
Thus the abolition of the privilege of a witness to refuse to answer on the
ground that his answer may tend to incriminate him places an additional
and powerful weapon in the hands of law enforcement. 21
The Committee does note that the witness must claim the privilege
and that several statutes, both federal and provincial, provide for
the compulsory examination of witnesses. It, therefore, recommends:
That Section 5, sub-section (2) of the Canada Evidence Act be amended to
provide that no answer made by a witness required
to give evidence
before a court, administrative tribunal or other body having the power
to compel witnesses to attend and give evidence under oath shall be receivable
in evidence in any subsequent criminal proceedings against such witness,
other than a prosecution for perjury in the giving of such evidence, unless
it is established that prior to the making of such answer such court,
administrative tribunal or other body advised the witness of the protection
18 Reading’s Tiial, 7 How. St. Tr. 259 at p. 296.
19Wigmore, op. cit., at p. 291.
20 Available, of course, by complimentary federal and provincial legislation,
if the question arises in criminal or civil cases.
21 Report, loc. cit., at p. 68.
No. 1]
LAW ENFORCEMENT AND THE CONFLICT OF VALUES
9
afforded by Section 5, subsection (2) of the Canada Evidence Act and the
procedure required to be followed to obtain the protection afforded thereby. 22
Two very distinct questions arise. Should individuals have a
privilege against self-incrimination, in some form or other? If so,
is the limited method of protection now afforded him adequate and
meaningful?
It is interesting to note that now, in the middle of the twentieth
century, the problem of this whole question of privilege really
rests on the worry that manifested itself in the sixteenth, that some-
one is going to start “poking about in the speculation of finding
something chargeable”. This worry manifests itself not only in the
area of answering questions under oath or the powers of adminis-
trative tribunals, but also into the area of compulsory statements
to police officers, the powers of the police to interrogate and wire-
tapping and eavesdropping. A thirteenth century canonical rule
directed towards heresy and witch-craft inquisitions becomes relevant
once more.
The conflict of values is apparent. The quotation from Hamlet
referred to in Wigmore 23 is appropriate:
In the corrupted currents of this world Offence’s gilded hand may shove
by justice; And oft t’is seen the wicked prize itself Buys out the law.
But ‘t is not so above; There is no shuffling; there the action lies In his
true nature, and, we ourselves compelled, Even to the teeth and forehead
of our faults, To give in evidence.
What is designed to protect the innocent must of its very nature
protect the guilty. But I should have thought that one very funda-
mental question that should be asked is whether the innocent needs
the protection. If that question had been asked in the context of
thirteenth century conditions of witch-hunts, heresy, hysteria, con-
demnation by public clamor and, indeed, the rack and the wheel,
I suppose no enlightened person would have hesitated to answer in
the affirmative. It
is not surprising that, in a reaction against
Stuart excesses and the Star Chamber, the answer was
in the
affirmative. It is even not surprising that in the enthusiasm of the
American Revolution the privilege became honoured, if misunderstood
–
to the stultification of many an American criminal prosecution.
Today, the question is not all that simple to answer. Few of us
are innocent of all crime or social or moral offence. So complex and
wide-ranging is the criminal law that it is difficult not to breach it.
An uncontrolled fishing expedition is almost certain to turn up
22 Ibid., at p. 70.
23 Wigmore, op. cit., at p. 281.
McGILL LAW JOURNAL
[Vol. 16
something. This is quite apart from something called the “right to
privacy” that I shall discuss later.
For the guilty, it will be recalled that, in origin, the objection
to self-incrimination was not to answering questions relating to
one’s guilt but to answering questions that might establish one’s
guilt before one has been accused of anything, or not related to the
subject matter of what one has been accused of doing. Lilburn’s
Case,2 while a landmark, did not purport to extend it further. What
was objectionable was not the fact of compulsion, but the range of
inquiry. No one objected to the juramentum de veritate dicenda
(the oath to tell the truth) so long as (a) a presentment had been
made in due form and (b) the questioning was germane to the
presentment. In more modern terminology, if a specific charge had
been laid, there was no objection to being compelled to testify and
to take an oath to tell the truth about that charge. In short, the
objection was not to self-incrimination but to witch-hunting.
McCarthyism is too recent for us to make light of the inherent
force of that objection. But I would suggest that the incredible
extension of the original protection benefits only the guilty and
does not affect the innocent. In fact, the utterly unjustified extension
of a perfectly simple and acceptable principle must be one of the
greater frauds perpetrated on law enforcement in the common law
world. What is essential for adequate, but at the same time fair
enforcement of the criminal ilaw is a return to a system that protects
the individual against witch-hunts, against compelling him to submit
to inquiry in the speculation of finding something chargeable (or,
indeed, as I shall discuss later, against permitting anyone, notably
the police, “poking about in the speculation of finding something”),
but requiring him, upon an allegation being made in due form, to
respond to those charges.
I see nothing difficult in adopting this in cases where a charge
has been -laid in criminal courts and the offender stands formally
accused and is on trial. I do not believe that this violates any
“privilege. against self-incrimination [that]
in
the feeling of justice or fairness with which contemporary Canadian
society reacts to our criminal process”.2 5 The process of “charging”
an accused is fairly well formalized in our system and at the very
least someone has sworn that he has reasonable and probable grounds
for believing the accused guilty. In fact, throughout the pre-triad
procedures for indictable offences, this belief may involve a com-
is deeply involved
24 Supra n. 15.
25 Report, loc. cit., at p. 54.
No. 1]
LAW ENFORCEMENT AND THE CONFLICT OF VALUES
11
plainant, the police, the crown-attorney, a justice of the peace, a
magistrate and, in some provinces, a grand jury, before the accused
stands arraigned. There seems to me to be simply no justification
why an accused person should not be compellable to answer, when
on trial, as to the truth of the accusation. The process will never
have reached the stage of trial, until, by a system of sifting and
sorting, the accusation stands on reasonable and probable grounds.
More difficult is the situation where an individual is not formally
accused of a specific offence. This may occur extrajudicially during
police investigation; it may occur, as the Committee rightly points
out, before aa administrative tribunal 2
(or Royal Commission)
where the individual is not accused; it may occur where the indi-
vidual is testifying at the trial of another accused. What must be
avoided is making any of these circumstances opportunities for
fishing expeditions that can later be used to the disadvantage of
the individual by being used, themselves, as the very basis for a
later formal accusation. That is to say, if the basis for the accu-
sation arises aliunde, the accused should be compelled to answer
(nothing, of course, will prevent him lying or refusing to reply,
but in our system, the trier of fact should be perfectly entitled to
draw inferences from that); but the individual should not be com-
pelled to provide his own basis for the accusation.
Herein, I suggest, ‘lies the real key to the modern rationale of
the privilege against self-incrimination. But if this is so, the Com-
mittee’s recommendations do not go far enough. As it points out,
while an individual may refuse to answer police inquiries, in some
proceedings
(such as administrative tribunals or Royal Commis-
sions) he is compelled to answer and has no protection at all. Fur-
thermore, if he is a witness, it is only the answers that may not
be used against him in subsequent proceedings. Information found
as a result of those answers may, and frequently does form the
basis of a subsequent accusation. If there is any merit in the sug-
gested reason for a privilege against self-incrimination, the only
rational conclusion that can be drawn is that a person being inter-
rogated by the police, examined before a tribunal or appearing as
a witness in trial proceedings must have the right to refuse to
answer in all cases where those answers might, directly or indirectly,
reasonably form the basis of a subsequent accusation against him.
This, one entirely agrees, would militate against one aspect of
law enforcement, but it is not, for that reason, insupportable. In
any case, there is one other side to the police function that is not
26 Ibid., at p. 67.
McGILL LAW JOURNAL
[Vol. 16
adequately dealt with by the Committee. This is the exploration of
the question as to how far the operation of the police should extend
to uncovering what would otherwise be undetected crime.
Traditionally, the investigation of an offence cannot begin until
the existence of that offence has become known to the police. Until
comparatively recently, this has presented little difficulty and it is not
necessary to expand on the reasons why this is no longer the case. New
techniques available to the criminal, organized crime, fear of re-
prisals, the proliferation of crimes without victims and many other
factors, now mean that not only is it more difficult to solve known
crimes, but also more difficult to know that crimes exist. If
it is
true that no one should be compelled to provide the basis for his
own accusation, it is suggested that more consideration has to be
given to the problem of enabling the basis for the accusation to
be found elsewhere.
The Committee deplores, and quite rightly, any practice of the
police in instigating the commission of an offence, which would
otherwise not have taken place, in order to provide the basis of
an accusation. It recommends:
1. That a person is not guilty of an offence if his conduct is instigated
by a law enforcement officer…, for the purpose of obtaining evidence for
the prosecution of such person, if such person did not have a pre-existing
intention to commit the offence.
2. Conduct amounting to an offence shall be deemed not to have been
instigated where the defendant had a pre-existing intention to commit the
offence when the opportunity arose and the conduct which is alleged to
have induced the defendant to commit the offence did not go beyond
affording him an opportunity to commit it.
3. The defence that the offence has been instigated by a law enforcement
officer or his agent should not apply to the commission of those offences
which involve the infliction of bodily harm or which endanger life. 27
There is, indeed, a difference between entrapment and enticement.
There is little doubt that most police officers would agree that the
latter is an abuse of their powers and that for them to instigate
an offence can hardly legitimately fall under “the prevention of
crime”. However, the entrapment of an offender, already embarking
on criminal conduct is a perfectly proper exercise of the police
function.
Now, of course, comes a critical inquiry. Should the concept of
witch-hunting be limited to being compelled to answer questions
relating to one’s own guilt in an inquisitorial system ranging beyond
any formal accusation or should it properly be extended (for histori-
27 Ibid., at p. ’70.
No. 11
LAW ENFORCEMENT AND THE CONFLICT OP VALUJES
13
(and this is a point often overlooked)
cal reasons, I maintain it is an extension) to a police function of
digging or exploring “in the speculation of finding something charge-
able”? And it is, perhaps regrettably, too late to examine this prob-
lem without being involved with what has become or is becoming
the so-called “right to privacy”. The difficulty arises, surely, because,
although a few years ago the individual could be protected against
manifest prying into his affairs by the requirements of arrest war-
rants or search warrants and corresponding rights to sue if these
were not obtained, there are now many methods available for getting
the same information without committing any of the traditional
torts or criminal offences in the process. The traditional limitations
on the powers of the police to search premises or an individual were
designed precisely to prevent law enforcement officers from going
the speculation of finding something
on fishing expeditions “in
they
chargeable”, unless
could justify their actions beforehand. This justification must exist,
in the case of arrest and personal search 2 8 because they, prior to
the arrest and search, know, or have reasonable and probable grounds
for believing that certain offences have been or are being com-
mitted, or, in the case of search of premises (apart from cases where
no warrant is required) they have sworn that they have reasonable
and probable grounds for believing that certain items will be found.
In short, an arrest or search must be justified before it takes place.
If, as has already been noted, the arrest or search is not justi-
fiable beforehand, it is illegal, a breach of the individual’s “right”
has occurred, and that “right” is enforceable, not by nullifying the
consequences, but by providing an action for damages or a criminal
prosecution. If it is desirable to create a “right” to privacy –
and
I accept that it is –
it is not necessary, in order to protect that
right, to nullify the consequences of its breach. The breach may be
adequately protected by providing an ex post facto action for dam-
ages.
Furthermore, the occasions upon which that right is removed
may be equated either to those generally involving search war-
rants –
i.e. requiring a sworn statement as to reasonable and
probable belief which, in itself, amounts to a formal accusation –
or to those involving arrests without warrant –
i.e. permitting an
informal accusation by requiring only that the police officer show
that he himself thought, on reasonable and probable grounds, that
he had cause. In either case, what it is essential to avoid is prying
without pre-existing cause, on mere vague suspicion, or public ru-
28R. v. Brezack, (1949), 96 C.C.C. 97.
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mour –
of the thirteenth century.
not really far removed from per dlamosam insinuationem
The difference between the limitations on the right to search
and the right to arrest is easily explicable. Generally speaking,
although, of course, there are exceptions, 29 the obtaining of incrimi-
nating documents or other real evidence does not present any great
degree of urgency that cannot wait for a warrant; the arrest of
an offender may or may not permit the delay involved in obtaining
a warrant. The law clearly recognizes that occasions will exist where
the obtaining of a warrant to arrest is not realistic. Into what
category, therefore, should one put the use of eavesdropping devices,
whether they be wire-taps or some other device? It seems to me
that if we require law enforcement officers to be satisfied before-
hand of reasonable and probable cause, no urgency is likely to arise
to render the obtaining of a warrant unrealistic. Such warrant should
be premised upon the sworn statement as to reasonable and probable
grounds for believing that an offence has been committed or is
being committed or is about to be committed and that evidence will
be obtained as a result of using an eavesdropping device. I, per-
sonally, see no reason for departing from the usual practice of
permitting a justice to issue such warrant.
Thus far, I agree with the Committee, save that it would wish
the warrant or order to be issuable only by a supreme court jus-
tice 30 –
thus, somehow implying that the right to privacy is to
be more jealously guarded than the right not to be arrested or not
to have one’s house searched. But the Committee goes on to recom-
mend that the results of an iflegal eavesdropping be inadmissible
in evidence,31 without, surprisingly enough, any of the hedging that
it employed in the case of illegally obtained real evidence as to
judicial discretion, honest mistake and so on. I can only repeat that
I do not think it is -a function of the law of evidence to attempt to
control police activity. It is, of course, necessary to enact legislation
embodying the right to -privacy, but it would be relatively simple
to provide that the use of any eavesdropping device by anyone should
be a criminal offence, (and one would hope that the Provinces would
pass complimentary legislation providing for a civil action) except
by a peace officer acting under a warrant. Equally clearly, I see
no difficulty in limiting the warrant as to duration, place, and
29 As in the case of writs of assistance, or a number of provincial statutes
such as the Games and Fisheries Act, R.S.O. 1,960, ch. 158, s. 6, or the Liquor
Control Act, R.S.O. 1960, ch. 217, ss. 79(2), 110(3), 11.1.
30Report, loc. cit., at p. 86.
31 Ibid., at p. 87.
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LAW ENFORCE1MENT AND THE CONrLICT OF VALUES
15
alleged offender and offences. In short, the police officer should
justify the use of the device beforehand.
I have never been happy with Section 431 of the Criminal Code
providing:
Every person who executes a warrant issued under section 429 may seize,
in addition to things mentioned in the warrant, anything that on reasonable
grounds he believes has been obtained by or has been used in the commission
of an offence, and carry it before the justice who issued the warrant…
to be dealt with in accordance with section 432.
It does appear that once a valid search warrant has been issued,
Section 431 permits the seizure of items not mentioned in the war-
rant, that could provide evidence in the prosecution of a totally
different offence. I hasten to add that there is no evidence that
this section is abused by law enforcement officers.
Nevertheless, the problem is even more acute in
the case of
warrants to eavesdrop. (It is, I think, a little easier to overhear
a conversation providing evidence of offences other than those
alleged than it is to find items other than those specified in a search
warrant.) It must be admitted that there may be some difficulty
in drafting, but it is suggested that it would be desirable to provide
that no evidence of any conversation not relevant to the specific
offence mentioned in the warrant, nor any evidence found as a
result of that conversation shall be admissible
in a subsequent
prosecution for any offence other than the one specifically men-
tioned in the warrant.
Such a scheme should surely protect the right to privacy of
everyone, guilty or innocent, who has not been “accused”
(not in
the formal sense) of a crime, by having a police officer swear that
he has reasonable and probable cause directed toward a specific
offence.
There remains the problem of the effect of totally illegal eaves-
dropping. As I have suggested, there is little difficulty in making
the police officer liable to damages and in imposing criminal lia-
bility. In my opinion, however, the results of such illegal eaves-
dropping should not be made inadmissible in evidence. It may be
objected that it is illogical to provide that if evidence is obtained
during the course of authorized wiretapping that is not relevant
to the offence mentioned in the warrant it should not be admissible
whereas if the evidence is obtained in a completely illegal manner
it is admissible. The lack of logic is, I suggest, apparent rather than
real. There are in fact two fundamentally different issues involved.
One is the use of the legal process in order to obtain, under the
guise of legality, incriminating evidence. The other is an illegal
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disregard for the legal process itself. The victim of illegality has
a protection –
a right of action against the wrongdoer or the right
to initiate criminal proceedings against him. In the other case, as
in so many other aspects of the whole legal system, we must be
concerned with the victim of -an abuse of the process, for he is the
one with no rights and no protection unless we create them for him.
We cannot give him a cause of action because no one has acted
illegally but we can ensure that he will not suffer because a lawful
process has been allowed to be twisted to his detriment.
Unfortunately, there is a tendency to examine not only this
problem but also the problem of illegally obtained evidence in a
vacuum divorced from the realities of life. Or perhaps it is that
we assume that American conditions are equally applicable north
is inconceivable how legislation can be proposed
of the border. It
on the assumption that law enforcement officers are going to break
the law deliberately, commit criminal offences and leave themselves
open to civil actions in order to secure evidence. Do we not have
to assume that if it is illegal to obtain real evidence in a certain
way or to obtain evidence of conversations without a warrant, then
law enforcement officers will not act illegally? Quite apart from
the fact that most police officers have more to do than search pre-
mises indiscriminately or idly listen in on other people’s conversa-
tions in the hope of finding something, a relatively simple, swift and
straight-forward method of obtaining the necessary authorization
reduces the risk of illegal operations. In any case, if the risk of
illegal activity is high, the only method of changing this state of
affairs is to improve the calibre of the police force not to keep
what, ex hypothesi, is an inadequate and dangerous group of indi-
viduals and attempt to control them by inadequate and dangerous
means. I see no point in tackling a fundamental problem at the end
rather than the beginning. I personally do not believe that the risk
of illegal activity is high; of course it exists, but to attempt to
2 and
counter it by using an evidentiary technique is, like Miranda 3
the extension of the privilege against self-incrimination, merely
another example of throwing the baby out with the bath-water.
Furthermore, it need hardly be added, the discretion to exclude
that is clearly recognized in Kuruma 33 would equally clearly apply
to illegally obtained evidence of conversations and would provide
protection in flagrant cases of injustice.
32 Supra, n. 8.
33 Supra, n. 10.
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LAW ENFORlOEMENT AND THE CONFLICT OF VALUtES
17
I suppose the basic themes that run throughout this paper is
that, in the Canadian context, it is the abuse of a legal process
which should give us more concern than the adoption of illegal tac-
tics, and that, important as the rights of the individual are, there
are ways of protecting those rights without at the same time neces-
is these that
sarily destroying the interests of the community. It
I have called the conflict of values. I do not doubt for one moment
the integrity and erudition of the Ouimet Committee. I merely
propose that there is another side to the coin.
Apart from the Committee’s recommendation as to instigation
to commit offences by law enforcement officers acting as a defence,
which I accept, I would propose:
1. That illegally obtained evidence be admissible in evidence, sub-
ject to the discretion recognized in Kurumc;
2. That a person compelled to testify in any proceedings be restored
his privilege against answering questions that might incriminate
him in subsequent proceedings;
3. That a person properly and formally accused be compelled to
testify at his trial and to answer all questions relevant to the
specific offence charged;
4. That the use of all eavesdropping devices be made both criminally
and civilly illegal, save by a police officer acting under a war-
rant issued by a justice, limited to time, place, person and alleged
offence;
5. That evidence of conversations obtained under a lawful warrant
but not related to the person or offence specified be inadmissible,
along with evidence obtained as a result of those conversations;
6. That evidence of conversations obtained unlawfully be admissible,
subject to the discretion to exclude recognized in Kurum.
Let me add one final point. Legal aid in this country is by no
means at an optimum standard and in some areas of Canada it is
pitifully inadequate. One must hope there will come a time in the
not too distant future when legal aid will mean everything that all
of us would wish it to mean. The accused will have meaningful
assistance, in cross-examination, in preparation, and in defending
himself. In Kurum, Lord Goddard made a statement with which
I cannot, at least on a literal interpretation, agree. He said:
If it [i.e. the evidence] is [relevant], it is admissible and the court is not
concerned with how the evidence was obtained. 34
34 Ibid., at p. 227.
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The court should be concerned. It should be concerned, not because
it will affect the relevance of the evidence (illegally obtained evi-
dence or illegal recordings of conversations) or its admissibility,
but because this may be the only opportunity the accused may have
to establish the illegality of the conduct of the police in order to
obtain subsequent redress. The court, in my opinion, should permit
cross-exajmination into the circumstances of the obtaining of evi-
dence, even though it has ruled such evidence admissible. Such an
inquiry may no longer be directly relevant to the fact of admissi-
bility, but it may, quite properly, affect weight or even form the
basis of a discretionary exclusion under the Kuruma principle. It
will -also afford the accused some basis for any subsequent pro-
ceedings. I do not believe that Canadian courts would take such
a narrow view of the proper scope of a legitimate inquiry as Lord
Goddard seems to take.
Given an adequate system of legal aid, therefore, and the desire
on the part of the courts not to prejudice unfairly an accused that
I believe they have, the resolution of the conflict of value lies not
in the enforcement of “rights” so much as in the prevention of abuses.
There must be rules to safeguard the individual but those rules
cannot be formulated with a disregard for the interests of the com-
munity. This is what the adversary system used to connote; there
is no reason why we cannot return to it.
