Exclusion of Evidence Under Section 24(2) of the Charter

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General Principles

See also: Discretionary Exclusion of Evidence

Where there has been a finding of a breach of any right under the Charter, the applicant may apply to have evidence that is connected with the breach excluded from the trial under s. 24(2) of the Charter which states:

Exclusion of evidence bringing administration of justice into disrepute
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.


– CCRF

Necessary Elements to Invoke s. 24(2) of the Charter
In order to invoke section 24(2) to exclude evidence, there must be a (1) infringement of Charter rights, (2) nexus between the in infringement and the evidence to be excluded, (3) the effects of the breach warrant the exclusion of evidence.[1]

Standing
Only a person whose Charter right have been infringed may claim relief under s. 24(2) of the Charter.[2]

Burden and Standard of Proof
Section 24(2) analysis assumes that a breach has already been established and that the breach will bring the administration of justice into disrepute. The burden then shifts to the Crown to prove that in fact the administration of justice will not be brought into disrepute.[3]

The standard of proof is on the balance of probabilities.[4]

Purpose
The purpose of s. 24(2) is to ensure the admission of evidence obtained by a Charter breach will not further damage the repute of the justice system beyond what has already been caused by the breach itself.[5]

The section primarily intends to "maintain the good repute of the administration of justice", which relates to "the processes by which those who break the law are investigated, charged and tried". It also includes "maintaining the rule of law and upholding Charter rights".[6]

Breach of Charter rights "affects not only the accused, but also the entire reputation of the criminal justice system". It follows that the "the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying" s. 24(2).[7]

The section is not intended to "punis[h] the police or provid[e] compensation to the accused".[8]

Interpretation
Like other parts of the Charter, s. 24(2) is to be interpreted in a "purposive" manner.[9]

The use of the word "would" is interpreted as equivalent to "could". This is due to the interpretive relevance of the french version of the section which is more generous to the accused.[10]

Types of Evidence
The types of evidence that can be excluded can include observational evidence made by police officers after the Charter breach.[11]

"Court of Competent Jurisdiction"
The Court must be a "court of competent jurisdiction" in order to have the power to exclude evidence under s. 24(2) of the Charter.[12]

  1. ↑ R v Spackman, 2012 ONCA 905 (CanLII) at para 100
  2. ↑ Charter Applications#Standing
  3. ↑ R v Simpenzwe, 2009 ABQB 579 (CanLII) at para 48
  4. ↑ R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, per Lamer CJ, at pp. 276-277
    see also R v Therens, 1985 CanLII 29 (SCC), [1985] 1 SCR 613
    R v Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980
  5. ↑ R v Grant 2009 SCC 32 (CanLII) at para 69
  6. ↑ Grant, ibid. at para 67
  7. ↑ R v Burlingham, [1995] 2 SCR 206, 1995 CanLII 88 (SCC) at para 50 ("Short-cutting or short circuiting [Charter] rights affects not only the accused, but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques, are of fundamental importance in applying s. 24(2)")
  8. ↑ Grant, supra at para 70
  9. ↑ Collins, supra at p. 287
  10. ↑ Collins, supra at p. 287 (SCR)
  11. ↑ R v Yaran, 2009 ABPC 150 (CanLII) at para 8
  12. ↑ Collins, supra p. 287

Test for Exclusion

Revised Test
The Supreme Court of Canada made a complete revision of the analytical approach in R v Grant, 2009 SCC 32 (CanLII). Under Grant, there are "three avenues of inquiry" that a court must consider:[1]

“

...when faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),
(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute...

”

The factors should be weighed to determine whether, "having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute". [2] No single factor should trump any of the other factors.[3]

The balancing is not a determination of whether the court approves or disapproves of the conduct in the particular case, but is meant to consider the broader effects of judicially condoning the Charter breach by allowing the Crown to admit evidence it should not have.[4]

This analysis should focus on the "long-term, prospective and societal" effect of the violations.[5]

It is less concerned with the particular case as it is concerned with the impact in the future of admitting evidence obtained in such a illegal manner.[6]

It is intended to reflect society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law".[7]

The analysis should be from an objective view and ask "whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute"[8]

There is no rule requiring the automatic exclusion of a statement obtained by Charter violations.[9]

Relationship between the Three Factors
The first two factors are meant to work "in tandem" as they both pull towards the exclusion of evidence, while the third factor pulls in the opposite direction towards the interests in admitting the evidence.[10]

  1. ↑ R v Grant per McLachlin, C.J. and Charron, J., at para 71
  2. ↑ R v Harrison, 2009 SCC 34 (CanLII) at para 36 See also R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253
    R v Côté, 2011 SCC 46 (CanLII), [2011] 3 SCR 215, at para 45-48
  3. ↑ Grant at para 86
  4. ↑ R v A.R.M., 2011 ABCA 98 (CanLII) at para 64
  5. ↑ see R v Mahmood, 2011 ONCA 693 (CanLII)
    R v Dhillon, 2012 BCCA 254 (CanLII), [2012] BCJ No. 1158 (C.A.), at para 78
    Grant at para 69 and 70
  6. ↑ R v Morelli, 2010 SCC 8 (CanLII) at para 108
  7. ↑ R v Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 (S.C.C.), at pp. 1219-20
  8. ↑ Grant at para 68
  9. ↑ R v NY, 2012 ONCA 745 (CanLII) at para 56, 57
  10. ↑ R v McGuffie, 2016 ONCA 365 (CanLII) at para 62 to 63

Appellate Standard of Review

A appellate court should give a discretionary decision of a judge, such as in a 24(2) analysis, high deference. The judge should only interfere where "the judge did not give weight to all relevant considerations". [1]

The decision to exclude evidence under s. 24(2) is a matter of law, however, one with “considerable deference”. [2]

Failure to perform the s. 24(2) Charter analysis is an error or law and is reviewable on a standard of correctness.[3]

Absent an error of principle, a palpable and overriding factual error or an "unreasonable determination", an appellate court should not interfere with the application of s. 24(2) of the Charter.[4]

  1. ↑ R v Bacon, 2012 BCCA 323 (CanLII) at para 14
  2. ↑ see R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, at para 43, 86
    R v Beaulieu, 2010 SCC 7 (CanLII) at para 5
    R v Cote, [2011] 3 SCR 215, 2011 SCC 46 (CanLII), at para 44
  3. ↑ R v Willier, 2008 ABCA 126 (CanLII), 429 AR 135, aff’d 2010 SCC 37 (CanLII), [2010] 2 SCR 429
  4. ↑ R. v. McGuffie, 2016 ONCA 365 (CanLII), at para. 64
    R. v. Grant, 2009 SCC 32 (CanLII), at para. 86
    R. v. Cole, 2012 SCC 53 (CanLII), at para. 82
    R. v. Côté, 2011 SCC 46 (CanLII), at para. 44

Causation ("in a manner")

The breach of a Charter will only warrant a remedy under s. 24(2) where the evidence was obtained "in a manner" that violated the Charter right.[1]

The nexus element requires that the evidence be obtained by the breach. Without causation there is no remedy under s. 24(2).[2] However, there is a residual exclusion of evidence under s. 24(1) for violation of trial fairness protected under s. 7 and 11(d) of the Charter.[3]

The proximity of the connection between the breach and the evidence is a question of fact on each case.[4]

A strict causal connection between the breach and the evidence is not required. Rather a "purposive and generous approach" should be taken.[5] The evidence is "tainted" by the breach if the evidence "can be said to be part of the same transaction or course of conduct".[6] This determination can be identified "causally, temporally and/or contextually".[7]

Examples
Evidence seized through a valid search done pursuant to a warrant can still be subject to exclusion as a warrant cannot be said to "expressly or by necessary implication or by the operating requirements of the legislation overrides the citizen's s. 10(b) rights".[8]

The police cannot use evidence obtained by a prior Charter breach to support a search warrant to seize further evidence.[9]

  1. ↑ Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980 (QL), Dickson C.J., at para 48 “…the first inquiry under s. 24(2) would be to determine whether a Charter violation occurred in the course of obtaining the evidence”.
  2. ↑ R v Spackman, 2012 ONCA 905 (CanLII), per Watt JA, at para 101
    R v Petit, 2003 BCCA 522 (CanLII)
    R v Luu, 2006 BCCA 73 (CanLII)
  3. ↑ Spackman, supra at para 101
    R v White 1999 CanLII 689 (SCC), [1999] 2 SCR 417 at para 89
    R v Harrer, 1995 CanLII 70 (SCC), [1995] 3 SCR 562 at para 42
  4. ↑ R v Goldhart, 1996 CanLII 214 (SCC), [1996] 2 SCR 463 at para. 40
  5. ↑ R v Plaha, 2004 CanLII 21043 (ON CA) at para 45 ("The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be “obtained in a manner” that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous.")
    R v Wittwer, 2008 SCC 33 (CanLII) at para 21 ("In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct...The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”...A connection that is merely “remote” or “tenuous” will not suffice...")
    R v Butters, 2014 ONCJ 228 (CanLII), at para 63
    R v Pino, 2016 ONCA 389 (CanLII) at para 50 to 68
  6. ↑ Wittwer, supra at para 21 ("The [evidence] will be tainted if the breach and the impugned [evidence] can be said to be part of the same transaction or course of conduct")
  7. ↑ Butters, supra, at para 63
  8. ↑ R v Strachan, [1988] 2 SCR 980, 1988 CanLII 25 (SCC), at para 64 per Wilson J (in concurrence) (there is no "search warrants which expressly or by necessary implication or by the operating requirements of the legislation overrides the citizen's s. 10(b) rights")
  9. ↑ R v Carrier, 1996 ABCA 145 (CanLII) at para 55 per Cote JA (we do not want the police "to get a warrant on the basis of some earlier Charter breach, and then shore up the voidable warrant with the fruits of the search which it purported to authorize.")
    R v Evans, [1996] 1 SCR 8, 1996 CanLII 248 (SCC) at para 19 ("warrants based solely on information gleaned in violation of the Charter are invalid")

First Factor: Seriousness of Police Misconduct

The first factor considers the effect of the police misconduct on the reputation of the justice system. Effectively, considering whether the courts are "condoning" the deviation from the rule of law by failing to disassociate themselves from the fruits of the misconduct.[1]

This factor involves the exercise of placing the breach on the "continuum of misconduct".[2]

However, an over-readiness to exclude for "fleeting and technical violation[s]" is likely "to be seen as symptom of systemic impotency which would breed public contempt for the criminal justice system"[3]

The inquiry is into "what the police did" and what is "their attitude when they did it".[4]

Factors the court must consider include:[5]

  • Was the breach “inadvertent or minor” or a result of willful or reckless or deliberate disregard for the Charter?
  • Did the police act in good faith?
  • Were there “extenuating circumstances”?

The existence of multiple Charter breaches will have the effect of aggravating the seriousness of the breach. [6]

  1. ↑ R v Ngai, 2010 ABCA 10 (CanLII), [2010] A.J. No. 96 (C.A.), ("court's first stage of inquiry requires it to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by failing to disassociate themselves from the fruit of that unlawful conduct." )
    R v Dhillon, 2010 ONCA 582 (CanLII), [2010] O.J. No. 3749 (C.A.) at para 45
  2. ↑ R v Blake, 2010 ONCA 1 (CanLII), [2010] OJ No 48 (ONCA)
    R v Flett, 2016 MBPC 66 (CanLII) at para 20
  3. ↑ see R v Shinkewski, 2012 SKCA 63 (CanLII), [2012] S.J. No. 376 (C.A.), at para 33
    R v Giulioni, 2011 NLTD 117 (CanLII), [2011] N.J. No. 322 (S.C.)
    R v Hart, 2012 NLCA 61 (CanLII)
  4. ↑ R v Ramage, 2010 ONCA 488 (canLII) at para 48
  5. ↑ R v Loewen 2010 ABCA 255 (CanLII) at para 83
  6. ↑ R v Calderon (2004) 2004 CanLII 7569 (ON CA), 188 C.C.C. (3d) 481 (Ont. C.A.), at paras. 93-94

Level of Intent

The gravity of the conduct depends on the degree of intention of the officer, ranging from inadvertent or minor violations to willful or reckless disregard for Charter rights.[1]

Flagrant disregard of Charter right are to be treated differently than breaches arising out of conduct that is in accordance with the law.[2]

The Court should consider "what the police did and their attitude when they did it".[3]

A "cavalier" attitude to the use of police powers will also aggravate the breach.[4]

The judge is permitted to proceed on the basis that the police conduct themselves in accordance with the law where there has been no "claim of police misconduct or negligence in [police activity]”.[5]

Whether the conduct was an isolated incident or part of a larger pattern of police disregard of Charter rights will affect the seriousness of the breach.[6] This can usually come out through voir dire evidence of whether the officer was acting on an established practice.

The seriousness can be mitigated by factors such as "good faith" on the part of the officer or extenuating circumstances that may warrant quick action to avoid losing evidence.[7]

The presence of reasonable and probable grounds for the police conduct will lessen the seriousness of the violation.[8]

The officer's knowledge of their limits of their authority is a factor in determining the seriousness of the breach.[9]

Even physical evidence that is reliable can be excluded where the violation was "deliberate and egregious and severely impacted" the accused's rights.[10]

Alternatives
Where the evidence could have been obtained without infringing the Charter can render the breach more serious.[11]

Examples
Entry into a residence with an invalid warrant or without any warrant is considered a serious violation of the accused's rights and tends to lean towards exclusion.[12]

Factors considered on a breach of s. 8 include:[13]

  1. the good faith of the officers who breached the rights;
  2. was the police conduct inadvertent or a deliberate ignoring of the law?
  3. were their actions motivated by a genuine and realistic urgency or necessity?
  4. could the evidence have been found in any other way?
  5. the obtrusiveness or otherwise of the search
  6. any expectation of privacy; and
  7. the existence of reasonable and probable grounds.
  1. ↑ R v Grant, 2009 SCC 32 (CanLII) at para 74
  2. ↑ see R v Beaulieu, 2010 SCC 7 (CanLII), [2010] 1 SCR 248
    R v Loewen, 2011 SCC 21 (CanLII), [2011] 2 SCR 167
  3. ↑ see R v Ramage, 2010 ONCA 488 (CanLII), at para 48
  4. ↑ R v Brown, 2012 ONCA 225 (CanLII)
  5. ↑ R v Blake, 2010 ONCA 1 (CanLII), per Doherty J
  6. ↑ R v Greffe, 1990 CanLII 143 (SCC), [1990] 1 SCR 755, at para 50
  7. ↑ R v Silveira, 1995 CanLII 89 (S.C.C.), [1995] 2 SCR 297
  8. ↑ R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51
    R v Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341
  9. ↑ R v Nguyen, 2009 CanLII 59692 (ON SC) at para 220
  10. ↑ Nguyen, ibid.
  11. ↑ Nguyen, ibid. at para 222
  12. ↑ R v Maton, 2005 BCSC 330 (CanLII) at para 56-64
  13. ↑ R v Moldovan, 2009 CanLII 58062 (ON SC), at para 163
    R v Buhay, 2003 SCC 30 (CanLII), [2003] 1 SCR 631 at paras 52

Good Faith

Good faith, if established, will favour admission because it will "reduce the need for the court to disassociate itself from police conduct".[1]

Evidence including testimony from the officer establishing that they reasonably believed that their actions were authorized by law or reflective of the state of the law at the time.[2]

Good faith however cannot be equated with wilful blindness, negligence or ignorance.[3] Same goes for recklessness[4], negligence[5], casually,[6], or intentionally.[7]

Courts should forgive "understandable errors" since they do not significantly corrode public confidence in the system.[8] There can be no finding of bad faith where the police do exactly what they are supposed to do in the circumstances.[9]

The officer's quality and focus of training has some but limited importance in considering good faith.[10]

Whether the Crown was consulted for advice on the matter will weigh towards the likelihood of good faith.[11] There is however little relevancy in the failure of either police or crown to take notes of their advice conversation.[12]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII) at para 75
  2. ↑ R v Spencer, 2014 SCC 43 (CanLII) at para 77
  3. ↑ R v Tombs, 2012 BCSC 1826 (CanLII), at paras 89 to 90
  4. ↑ Grant at para 74
  5. ↑ R v Morelli, 2010 SCC 8 (CanLII) at para 99
  6. ↑ R v Buhay, 2003 SCC 30 (CanLII) at para 57
  7. ↑ Grant, supra at para 133
  8. ↑ Grant, supra at para 75
  9. ↑ R v Blake, 2010 ONCA 1 (CanLII) at para 25
  10. ↑ R v Clayton, 2007 SCC 32 (CanLII), [2007] 2 SCR 725 at para 51, 52
  11. ↑ R v Jones, 2011 ONCA 632 (CanLII)
  12. ↑ see Jones, ibid.

Urgency or Necessity

Searches that are done out of urgency or necessity favour admission of evidence. [1] Circumstances would include risk of evidence being destroyed or lost.[2]

The presence of ignored lesser intrusive options to chosen the method of investigation will have an aggravating effect on the seriousness of the Charter breach.[3]

A disregard of any non-violate alternative options supports exclusion of the evidence.[4]

  1. ↑ R v Buhay, 2003 SCC 30 (CanLII), [2003] 1 SCR 631 at para 52, 61, 63
  2. ↑ Buhay, ibid.
  3. ↑ R v Brown, 2012 ONCA 225 (CanLII)
  4. ↑ Collins at para 38

Second Factor: Impact on Personal Interests

The greater the impact on the accused's rights, the more likely admission of the evidence will bring the administration of justice into disrepute.[1]

The impact on the personal interests is a two part inquiry. First, the interest engaged must identified, and then the degree to which the violation impacted this interest must be considered.

The impact can range from fleeting and technical to profoundly intrusive.[2]

Being stopped and searched without justification impacts liberty and privacy in more than a trivial manner. [3]

Stopping a vehicle creates a lesser impact on personal interests than a search of a residence.[4]

In the context of an roadside screening demand, it has been said that only the breaching event is to be considered in determining the impact on personal interests. The judge should not consider the events that follow including the subsequent arrest, personal consequences, or employment consequences.[5]

Denial of Ownership of Evidence
The fact that the accused denies ownership in the item seized is an "important factor" to consider[6]


  1. ↑ R v Côté, 2011 SCC 46 (CanLII) at para 47
  2. ↑ R v Grant, 2009 SCC 32 (CanLII)
  3. ↑ R v Harrison, 2009 SCC 34 (CanLII), [2009] 2 SCR 494 at para 31 "being stopped and subjected to a search by the police without justification impacts on the motorist's rightful expectation of liberty and privacy in a way that is much more than trivial.”)
  4. ↑ see R v Bacon, 2012 BCCA 323 (CanLII), [2012] BCJ No. 1571 (C.A.), at para 34
    R v Loewen, 2011 SCC 21 (CanLII), [2011] 2 SCR 167, [2011] S.C.J. No. 100, at para 12 and 13
    R v Harrison, at para 31
  5. ↑ R v Booth, 2010 ABQB 797 (CanLII)
  6. ↑ R v Harrison, [2009] 2 SCR 494, 2009 SCC 34 (CanLII), at para 63 and 64 endorsing the Court of Appeal decision

Discoverability

The older test under Collins placed emphasis on the discoverability of the evidence, inquiring whether the evidence would have been otherwise discovered during the investigation. Under the new model, the discoverability is still relevant to the first two branches of the analysis but less crucial to the analysis.[1] However, putting too much weight on discoverability may be an error in law.[2]

The law remains that the impact of a breach is lessened and the admission is more likely where the derivative evidence was otherwise discoverable.[3] The "more likely that the evidence would have been obtained even without [the impugned statement of the accused] the lesser the impact of the breach on the accused’s underlying interest against self-incrimination".[4]

  1. ↑ R v Côté, 2011 SCC 46 (CanLII) at para 70
  2. ↑ R v MacMillan, 2013 ONCA 109 (CanLII) starting at para 63
  3. ↑ R v Grant, 2009 SCC 32 (CanLII) at para 125
  4. ↑ Grant, ibid. at para 122

Third Factor: Interest in Trying Case on Merits

The third step considers the "truth-seeking function" of the trial process.[1] It asks whether this "truth-seeking function" is better served by either the exclusion or admission of the evidence.[2]

This factor "reflects society's expectation that the criminal allegations will be adjudicated according to their merits."[3] It is presumed that society has an interest in adjudicating matters on the merits. A balance must be made between the effect of its exclusion to the effect of its inclusion.

This factor "becomes important" when either the first or the second factor (but not both) push "strongly toward the exclusion of the evidence".[4] However, where both favour exclusion, the third factor will "seldom, if ever, tip the balance in favour of admissibility'.[5] When both favour inclusion, the third factor will "almost certainly confirm the admissibility of the evidence".[6]

Relability of the Evidence
The "reliability" of the evidence is an important inquiry. If the breach brings the reliability into question it will favour exclusion.[7] Admitting unreliable impacts the fairness of the trial and the public's desire to uncover the truth. However, excluding reliable evidence will undermine trial fairness and the truth-seeking function of the justice system.[8]

It is inconsistent with the Charter to "view that reliable evidence is admissible regardless of how it was obtained".[9]

Where the evidence forms the core of the Crown's case, admitting unreliable evidence is more likely to bring the administration of justice into disrepute. By contrast, excluding reliable evidence in such a circumstances will impact trial fairness and the truth-seeking function even more.[10]

Importance to the Crown's Case
The importance of the evidence on the Crown's case is also important. [11] Where the exclusion would effectively "gut" the case, it will be a factor in favour of admission.[12]

Seriousness of Offence
The seriousness of the offence has some importance,[13] but not as much as it did under the old "Stillman test".[14] Nevertheless, seriousness can "cut both ways".[15] The importance of the short-term desire to convict for serious offences is balanced against the need for fair conduct where the penalty is so great.

There will be cases where the seriousness of the offence is considered "neutral".[16]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII)
  2. ↑ Grant, ibid. at para 79
  3. ↑ R v Manchulenko, 2013 ONCA 543 (CanLII), at para 92
  4. ↑ R v McGuffie, 2016 ONCA 365 (CanLII), at para. 63 per Doherty JA ("In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence")
  5. ↑ McGuffie, ibid. at para 63
  6. ↑ McGuffie, ibid. at para 63
  7. ↑ Grant, supra at para 83
    R v Atkinson, 2012 ONCA 380 (CanLII), [2012] O.J. No. 2520 (C.A.), at para 93
  8. ↑ Grant, supra at para 81 ("exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.")
  9. ↑ Grant, supra at para 80
  10. ↑ Cote, supra at para 47
  11. ↑ R v Grant at para 83
  12. ↑ see R v MacDonald, 2012 ONCA 495 (CanLII), [2012] O.J. No. 3210 (C.A.)
  13. ↑ R v Reddy, 2010 BCCA 11 (CanLII), at para 94
    R v Stevens, 2011 ONCA 504 (CanLII), at para 62
  14. ↑ R v Tombs 2012 BCSC 1826 (CanLII) at para 92
  15. ↑ Grant, supra at para 84
  16. ↑ see R v Martin, 2010 NBCA 41 (CanLII), [2010] NBJ No. 198 (C.A.), at para 96

Balancing of Factors

The balancing of these factors must focus upon the "long-term prospective repute of the administration of justice".[1]

Where the first and second factors favour exclusion the third factor “will seldom, if ever, tip the balance in favour of admissibility”.[2]

  1. ↑ R v Morelli, 2010 SCC 8 (CanLII) at para 108
  2. ↑ R v McGuffie, 2016 ONCA 365 (CanLII), per Doherty JA at para 6

Analysis for Certain Types of Evidence

Statements by Accused

The common law historically treats statements different from other types of evidence.[1] The concern for "proper police conduct in obtaining statements" and "the centrality of the protected interested" present in most cases will favour the exclusion of statements.[2]

The third factor will often be attenuated due to the lack of reliability of a unconstitutionally obtained statement.[3]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII) at para 98
  2. ↑ Grant, ibid. at para 98
  3. ↑ Grant, ibid. at para 98

Bodily Evidence

On the second factor, a breach of s. 8 of the Charter will focus on the "degree to which the search and seizure intruded upon the privacy, bodily integrity and human dignity of the accused".[1]

The third factor will usually favour admission in cases involving bodily samples as it is usually inherently reliable.[2]

Generally, where the breach was "deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded".[3]

Due to the reliability of bodily substances independent of the breach. The third factor will tend to weigh in favour of admission.[4]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII) at para 109
  2. ↑ Grant, ibid. at para 110
  3. ↑ Grant, ibid. at para 111
  4. ↑ Grant, ibid. at para 115

Non-Bodily Physical Evidence

Exclusion of physical evidence will typically result where the conduct is "deliberate or egregious".[1]

Breaches of s. 8 will concern the impact on the type of privacy interests as well as the interests of human dignity.[2]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII) at para 112
  2. ↑ Grant, ibid. at paras 112 to 113

Derivative

Derivative evidence is physical evidence obtained through the information provided by an unlawfully obtained statement.[1]

The second factor should consider to what extent the breach "impinged upon that interest in a free and informed choice".[2] A significant compromise of this interest will "strongly favour" the exclusion of evidence.[3]

Whether the evidence was otherwise discoverable will be a consideration in favour of admission. The lack of discoverability will favour exclusion.[4]

Applying the "discoverability rule" as determinative will not always work as it relies on hypothetical and theoretical circumstances.[5]

Given the reliability of real or physical evidence, the third factor will usually favour admission.[6]

Deliberate abuse of accused's rights should result in exclusion.[7]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII) at para 116
  2. ↑ Grant, ibid. at para 125
  3. ↑ Grant, ibid. at para 125
  4. ↑ Grant, ibid. at para 122
  5. ↑ Grant, ibid. at paras 120-121
  6. ↑ Grant, ibid. at para 126
  7. ↑ Grant, ibid. at para 128

Interests for Specific Offences

No matter how serious the offence and important the societal interest in eliminating the crime, the Charter must always be compiled with.[1]

  1. ↑ R v Silveira, [1995] 2 SCR 297, 1995 CanLII 89 (SCC) at para 91 ("It cannot be disputed that the drug trade is odious, and poses a grave threat to society. And I therefore agree that all reasonable steps must be taken to eradicate it. But we cannot allow the desirability of these efforts to make the courts deviate from their high duty to ensure that those who wield power on behalf of the state must do so within the limits the Charter dictates for the benefit of the individual. No matter how grave the threat, law enforcement must operate in conformity with the enshrined protections of the Charter")

Motor Vehicle Offences

Cases have addressed society's interest screening of impaired drivers to reduce the carnage on our highways prefers the inclusion of evidence.[1]

The ASD procedure has been described as a "non-invasive" and "does not undermine bodily integrity or dignity".[2]

Breath sample evidence by ASD or intoxilyzers are "generally considered reliable" subject to other evidence in a given case.[3]

  1. ↑ see R v Elias; R v Orbanski 2005 SCC 37 (CanLII), (2005), 196 CCC (3d) 481 (S.C.C.) at paras 3, 24-27; 49; 55 and 58
  2. ↑ R v Vandenberg 2010 ABQB 261 (CanLII)
  3. ↑ R v Bryce, 2009 CanLII 45842 (ON SC), [2009] O.J. No. 3640 (ONSC) per Hill J. at paras 64 and 65

Weapons Offences

In consideration under s.24(2) of the Charter, courts have commented on the public interest with respect to gun cases:[1]

Offences involving handguns is a “serious and growing societal danger”.[2] There is a strong emphasis on the need to denounce and deter the use of firearms in public places.[3] There has been judicial notice that as of 2007 there has been a national increase in gun violence and gun-related offences.[4]

It has been said that "the exclusion of firearms would more negatively impact the administration of justice than their admission."[5]

  1. ↑ See R v Campbell, 2009 CanLII 55314 (ON SC), [2009] OJ 4132
  2. ↑ R v Clayton, 2005 CanLII 16569 (ON CA) at 41 appealed at 2007 SCC 32 (CanLII), [2007] 2 SCR 725
  3. ↑ R v Danvers, 2005 CanLII 30044 (ON CA) at para 77
    R v Bellamy, 2008 CanLII 26259 (ON SC), [2008] 175 C.R.R. (2d) 241, at para 76
    R v Brown, [2006] O.J. No. 4681 (Ont. S.C.J.) at para 9
  4. ↑ R v Clayton 2007 SCC 32 (CanLII) at para 110
  5. ↑ R v Mpamugo, 2009 CanLII 9741 (ON SC), [2009] O.J. No. 953 (S.C.) at para 48
    R v Harrison, 2009 SCC 34 (CanLII), [2009] 2 SCR 494, at para 82

Drugs and Guns Offences

There have been many cases confirm the public interest in prosecuting drug and gun offences.[1]

  1. ↑ R v Prosser, 2014 ONSC 2645 (CanLII), at para 99
    R v Greffe, 1990 CanLII 143 (SCC), [1990] 1 SCR 755
    R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297
    R v Nguyen [2005] O.J. No. 1948 (S.C.J.)(*no CanLII links)
    R v Brown, 2009 ONCA 563 (CanLII), 251 O.A.C. 264, at para 33
    R v Brown, [2007] O.J. No. 5659 (S.C.J.), at para 20 per Nordheimer J. appealed to 2009 ONCA 563 (CanLII)
    R v Smickle, 2013 ONCA 678 (CanLII), 304 CCC (3d) 371, at paras 28-30

Types of Police Conduct

Police are presumed to know the law. However, where there exist conflicting precedent they are not expected to reflect "judicially" on the distinctions.[1]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII) at para 133 per McLachlin CJ and Charron J ("We add that the Court’s decision in this case will be to render similar conduct less justifiable going forward. While police are not expected to engage in judicial reflection on conflicting precedents, they are rightly expected to know what the law is...")

Searches

The unlawful entry into a persons home "is the ultimate invasion of privacy. It is a denial of one of the fundamental rights of individuals living in a free and democratic society.”[1]

Where telewarrant process was used "without having adequately demonstrated that it was impractical to appear in person" is not considered a "serous breach".[2]

Admission of evidence obtained from unacceptable police conduct or practices in performing warrantless searches leaves justice with a "black eye".[3]

A search of a dwelling house "must be approached with the degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected".[4]

  1. ↑ R v Silveira, 1995 CanLII 89 (S.C.C.), [1995] 2 SCR 297 at para 148
  2. ↑ R v Lacelle, 2013 ONCA 390 (CanLII) at para 11
  3. ↑ R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at para 110
  4. ↑ Sutherland at para 15

Evidence Collected Outside Canada

See also: Discretionary Exclusion of Evidence

Th Charter generally does not apply to foreign authorities.[1]

Evidence collected outside of Canada in a manner compliant with local laws but not compliant with Canadian laws may be admissible unless do admit it would render the trial unfair.[2] All relevant factors must be considered.[3]

A major factor includes whether the official conducting the investigation is from Canada or a foreign country. [4]

Trial will be unfair where "so grossly unfair as to repudiate the values underlying our trial system and condone procedures which are anathema to the Canadian conscience"[5]

  1. ↑ R v Harrer, [1995] 3 SCR 562, 1995 CanLII 70 (SCC), at para 35
  2. ↑ R v Tan, 2014 BCCA 9 (CanLII)
  3. ↑ R v Cook, 1998 CanLII 802 (SCC), [1998] 2 SCR 597
    R v Hape 2007 SCC 26 (CanLII), (2007), 220 CCC (3d) 161 (S.C.C.) at para 109
  4. ↑ R v Mathur, CanLII 38943 (ON SC) at para 33
  5. ↑ Harrer at para 51

Pre-Grant Analysis

Trial Fairness
The factor of "trial fairness" under the previous Collins test had problems, including that is was largely determinative of the issue. Rather, trial fairness is considered an overarching goal of the analysis and not merely a factor.[1]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII) at paras 62 to 65

Collins/Stillman Analysis

Under the Collins test, the administration of justice is brought into "disrepute" where a combination of three factors weight in favour of exclusion of evidence. These sets of factors consist of:[1]

  1. factors affecting the fairness of the trial,
  2. factors relevant to the seriousness of the violation; and
  3. factors relevant to the effect of excluding the evidence.

The Stillman test considers the first set of factors. It examines the nature of the evidence and alternatives to its discovery.[2] The Stillman test directs the following analysis:

  1. Classify the evidence as conscriptive or non-conscriptive based on the manner in which the evidence was obtained. If the evidence is non-conscriptive, its admission will not render the trial unfair and the Court will proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of justice.
  2. If the evidence is conscriptive and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative non-conscriptive means, then its admission will render the trial unfair. The Court, as a general rule, will exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice. This must be the result since an unfair trial would necessarily bring the administration of justice into disrepute.
  3. If the evidence is found to be conscriptive and the Crown demonstrates on a balance of probabilities that it would have been discovered by alternative non-conscriptive means, then its admission will generally not render the trial unfair. However, the seriousness of the Charter breach and the effect of exclusion on the repute of the administration of justice will have to be considered.
  1. ↑ R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265
  2. ↑ R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607

Conscriptive Evidence

Evidence that is conscriptive is a factor against the admission of evidence obtained by a Charter violation.

Conscriptive evidence affects the trial fairness factor. It arises from any of the following:[1]

  1. statements
  2. use of the accused's body
  3. taking of bodily sample
  4. evidence derived from the above (derivative evidence)

Evidence that is conscriptive and not otherwise discoverable will tend to be excluded.

A voluntary statement cannot be conscriptive.[2]

Burden and Standard of Proof
Conscriptiveness must be proven by the Accused on a balance of probabilities.

Discoverability
Discoverable evidence is evidence that 1) can be proven by other non-conscriptive means or 2) would inevitably be discovered.[3]

Discoverability must be proven by the Crown on a balance of probabilities.

The automatic exclusion of non-discoverable conscriptive evidence was rejected under the Grant approach.[4]

  1. ↑ Watt, Manual of Criminal Evidence at 41.03
    R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607 - lists the first three factors
  2. ↑ Watt at 41.03
  3. ↑ Stillman
  4. ↑ R v Grant, 2009 SCC 32 (CanLII)

Relevant Charter Rights

Other Remedies for Charter Breaches

See Also

External Links

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