As summer edges damply forward, and back-to-school commercials linger threateningly just over the horizon, the thoughts of the aspiring lawyer turn idly to employment, and the grim spectre, casually-mentioned, that one's blog may be perused by decision-makers.
What was the last entry I made on this blog? the student wonders. Could it have been the one about the marijuana? Oh dear. That is not fairly representative. If only it could have been the one about justice (Texas-style), or that other one about how the Nashville Predators organization should give me $200. Oh well. Perhaps I am due for a new entry.
But what search string is called for in such a situation? Perhaps the interests found on one's resume will serve. The word 'caribou' in the British Columbia and Yukon law reports brings roughly 200 cases to attention. The noble beast has had some significant legal troubles, it would seem. A search for 'murder' within those results procures a rather more manageable six, among them them R. v. Wise,  1 S.C.R. 527. Odd, thinks the aspiring lawyer, I've come across this case before. Perhaps the volume of Canadian jurisprudence has been exaggerated!
The case should be known to any student with the unenviable task of arguing for the admissibility of ill-gotten evidence, under s. 24(2) of the Charter. Whether inclusion of such evidence will "bring the administration of justice into disrepute" is a question haunting many a moot court, and the Collins test haunts the dreams of many a moot court participant. Indeed, were the Supreme Moot Court of Windsor to have its way, young Jagrup Singh would today be walking free, despite the aspiring lawyer's best efforts in the spring of 2008, it must be admitted.
Mr. Wise, a suspect in a murder with possible serial implications, made the mistake of committing some mischief to property over $1000. Significantly over. Having placed an electronic tracking device in Mr. Wise's car during the course of their investigation, police had little trouble tying him to the destruction of a two-million dollar communications tower. The twisted hunks of metal found in his car provided fairly clearcut evidence.
Unfortunately, the police, armed with a warrant to search the man's property and vehicle, failed to install their tracking device until 30 hours after the expiry of that warrant. A Charter violation was made out, and Mr. Wise was acquitted. The Crown, however, was not so easily dissuaded. The Court of Appeals and the Supreme Court of Canada agreed that Mr. Wise should be imprisoned, in the interests of justice. While the accused's Charter rights under s. 8 were violated, the violation was forgivable based on the factors outlined in Collins. Noted Justice Cory for the majority of the Supreme Court, "the beeper monitoring of the accused's vehicle invaded a reasonable expectation of privacy" (para. 19) and thus violated s. 8 of the Charter; however, the evidence was not conscriptive, there was a pressing need for it, and the administration of justice was not brought into disrepute by its admission.
But what does the caribou have to do with it?
According to Justice Cory at paragraph 28, the mighty caribou herds solve a thorny problem afflicting law students nationwide: the definition of the word 'conscriptive' in s. 24(2) --
In this case, I agree with the court of appeal that the movements of the car constituted real evidence. There was no police compulsion or enticement which required the appellant to enter or drive his car. Rather he exercised his own free will. It was the accused who determined that he would drive his car, the routes he would follow and the manner in which he drove. The movement of an object may be transitory but it is real. The movement of a terrestrial body can be and often is plotted. That movement is transitory but real. The migratory route of the caribou herds is transitory but it is vital and real to those who depend upon that movement for food and clothing. So too is the movement of a motor vehicle real. This evidence could be considered conscriptive if the actions of the police forced or perhaps enticed the accused to utilize his vehicle and to follow prefixed routes in arriving at destinations selected by them.
- If one happens to be a person-of-interest in an investigation into a rash of serial killings, it is best to keep one's head down, refraining from wanton destruction, even in the wilds.
- The Collins test will stay with you long after the moot court's venerable doors have slammed on you. Whether or not evidence may be considered 'conscriptive' is a question which cannot safely be left to the academics. Only by the the migratory route of the caribou herds may you be saved.
Lessons learned in first year law, about which one is now uncomfortably reminded:
- When the judge agrees to disagree with you about the meaning of the word upon which hinges the case, victory is probably not at hand.