Ottawa terrorism arrests: the derivative evidence issue

National Security Law, ch. 7 and 15

The Ottawa Citizen is reporting today that Pakistani intelligence agencies "claim that they tipped off Canadian security officials, leading to the launch of Project Samossa" that culminated in last week's arrests. If so, there will inevitably be questions about the nature of this tip-off and the information supplied by Pakistan.  There are now several scandals involving Pakistan's intelligence practices, and specifically methods of interrogation. (See, for instance, the discussion in the recent case of United States v. Khadr, 2010 ONSC 4338).

Fruit of the Tortured Tree?

Accordingly, defence lawyers
in the Ottawa cases may reasonably be expected to wonder if the Pakistani tip-off
is a poison tree, and the Canadian investigation and arrests its fruit.  If, for instance, the information that prompted Canadian officials to seek and obtain warrants for electronic surveillance and/or physical searches stemmed from Pakistani sources, and that surveillance and those searches are what produced the information supporting the arrests and charges, then the Pakistani tip-off is the causal basis for the criminal prosecution.  If the tip-off that culminated in this chain of events was procured through torture, then matters become very complicated for the government indeed.

This remains a hypothetical situation at present, given how little is known at present about the Crown's case.  However, if this scenario does arise, the question then becomes: has the fruit that constitutes the Crown's case rolled far enough from the poisoned tree to be admissible in court?

First point, as discussed in National Security Law, ch. 15, evidence that is itself procured by torture is inadmissible for constitutional and statutory reasons -- and in any event would probably be excluded as hearsay not entitled to any exception to the hearsay rule. 

General Rules on Derivative Evidence

Second point, derivative evidence is "physical evidence discovered as a result of an unlawfully obtained statement" (R. v. Grant, 2009 SCC 32, at para. 116).  In Grant, the Supreme Court developed a new approach to the admissibility of derivative evidence, examined from the optic of section 24(2) of the Charter: First, the court considers the police conduct: were the authorities acting flagrantly in violating a Charter right, or in good faith in pursuit of what they viewed as legitimate policing policies.

Second, did the breach that culminated in the inadmissible statement leading to the derivative evidence significantly impinge on a Charter right?  Here, one issue in determining the magnitude of the breach is whether the derivative evidence would have been discovered anyway.

Third, would the admission of the derivative evidence bring the administration of justice into disrepute?

Putting these variables together, the Court opined that "[a]s a general rule, ...where reliable evidence is discovered as a
result of a good faith infringement that did not greatly undermine the
accused's protected interests, the trial judge may conclude that it
should be admitted under s. 24(2) [of the Charter]. On the other hand, deliberate and
egregious police conduct that severely impacted the accused's protected
interests may result in exclusion, notwithstanding that the evidence
may be reliable" (at para. 127).

Square Peg, Round Hole

Grant is, however, of limited direct value in dealing with our Pakistan intelligence hypothetical.  The Pakistan government was not, (hypothetically) extracting its intelligence via torture in breach of the Charter -- the Charter is not applicable to it.  Nor would the Charter protect the torture victim in foreign custody.  The caselaw has traditionally been unwilling to allow evidence to be excluded by virtue of section 24(2) of the Charter where it was procured, not by the violation of the accused's own Charter rights, but of those of someone else.  See discussion in Paciocco and Stuesser, The Law of Evidence (Irwin Law, 5th Ed, 2008) at 356 et seq.

Accordingly, the Grant test -- tied to the conduct of Canadian law enforcement officials themselves in producing the inadmissible statement leading to the derivative evidence -- seems a poor fit and, indeed, would render derivative evidence stemming from all foreign supplied information, no matter how obtained, admissible. 

A Different Approach

On the other hand, the tortured admission is clearly inadmissible in its own right -- consider that section 269.1 of the Criminal Code specifies that "any statement obtained as a result of the commission of an offence
under this section is inadmissible in evidence, except as evidence that
the statement was so obtained."  It doesn't matter whether this statement was the product of foreign or domestic torture.  Since the baseline inadmissibility of the tortured statement is indisputable, there must be some consideration given to a derivative evidence rule, even if, as yet, the Supreme Court has not developed such a doctrine.  Several ways of approaching this issue present themselves, at first blush.

a) Stay of Proceedings?

One alternative may be that the entire criminal proceedings would be stayed, in keeping with the approach adopted by the Ontario Superior of Justice in United States v. Khadr, 2010 ONSC 4338.  There, the Court stayed on extradition proceeding on the basis that the evidence supporting it was derived from maltreatment (in Pakistan).  (That decision was appealed by the Crown this week).

b) Building on Hape?

 Another approach is to build on the Supreme Court's R. v. Hape, 2007 SCC 26, decision, suggesting that evidence may be inadmissible if its admission would compromise the fairness of a trial protected by sections 11(d) and 7 of the Charter.  The Court cites torture evidence as an example -- it would be inadmissible in a Canadian proceedings even if the torture victim was not owed Charter rights him- or herself.  Hape does not develop a doctrine of derivative evidence stemming from torture, but were this issue to arise it seems possible that a court might fall back on the essential core pre-Grant approach to derivative evidence -- that of "discoverability".  Specifically, would the derivative evidence have been obtained in any event?  More specifically, could the Canadian authorities have obtained the evidence supporting the current arrests and anticipated prosecutions even in the absence of the Pakistani input, (hypothetically) produced by torture? If the Pakistani intelligence truly was the impetus for the investigation, the answer to that question may be "no".

c) Attacking the Underlying Warrant?

Yet another (and perhaps most likely) way of approaching this question may involve the legitimacy of warrants obtained by the authorities that produced the evidence.  In this case, it seems likely that any derivative evidence collected in Canada was procured by search or lawful access warrant.  Put another way, a warrant was interposed between the Pakistani tip-off and the evidence.  If these warrants were obtained on the strength of Pakistani information that was the product of torture, they themselves are likely improper (again, torture evidence is inadmissible under s.2691. of the Criminal Code).  It follows that the evidence gathered pursuant to these warrants may not itself be admissible -- in this case, an improperly obtained search warrant violates the accused's own Charter rights, requiring the court to consider the admissibility issue (applying a Grant-style test).

In sum, the many difficult questions of law and fact to be encountered in any trial resulting from the Ottawa terrorism arrests continue to multiply.