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:

24...

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

Note up: 24(2)

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]

The purpose too cannot be for deterring the police. The consequence of exclusion may have a deterrent effect, but the court should not be using that as a basis to exclude.[9]

Interpretation

Like other parts of the Charter, s. 24(2) is to be interpreted in a "purposive" manner.[10]

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.[11]

Types of Evidence

The types of evidence that can be excluded can include observational evidence made by police officers after the Charter breach.[12]

"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.[13]

No Alternative Remedy

The court, when considering an application to exclude evidence under s. 24(2), must only decide whether the evidence should be excluded or not. There is no alternative option of ordering a remedy under s. 24(1). [14]

  1. ↑ R v Spackman, 2012 ONCA 905 (CanLII), per Watt JA, at para 100
  2. ↑ Charter Applications#Standing
  3. ↑ R v Simpenzwe, 2009 ABQB 579 (CanLII), per Yamauchi J, 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, per Dickson CJ
    R v Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980, per Dickson CJ
  5. ↑ R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachln CJ and Charron J, at para 69
  6. ↑ Grant, ibid., at para 67
  7. ↑ R v Burlingham, 1995 CanLII 88 (SCC), per Iacobucci J, 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. ↑ Grant, supra, per McLachlin CJ and Charron J, at para 73( "The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence.")
  10. ↑ Collins, supra, at p. 287
  11. ↑ Collins, supra, at p. 287 (SCR)
  12. ↑ R v Yaran, 2009 ABPC 150 (CanLII), per Fradsham J, at para 8
  13. ↑ Collins, supra, at p. 287
  14. ↑ R v Therens, 1985 CanLII 29 (SCC), [1985] 1 SCR 613
    R v Stachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980, at para 36/, at p. 1000 ("... Section 24(2) is a special remedial provision. It is set apart from s. 24(1), the general remedial section of the Charter. Section 24(2) sets out the conditions in which the exclusion of evidence may be granted in an application for a remedy under s. 24(1). In R v Therens and R v Collins, majorities of the Court held that s. 24(2) provides the sole basis for the exclusion of evidence; evidence cannot be excluded under s. 24(1) alone. ...")

Test for Exclusion

There are essentially two stages to the test. There is the "threshold stage" followed by the "evaluative stage". The first stage considers whether actions are sufficiently proximate to the Charter right breach to be worth evaluating. The second stage consists of the "Grant factor" analysis to determine if an actual reason to exclude evidence.[1]

Threshold Test

The threshold stage requires that the evidence was "obtained in a manner" that infringed the Charter. There is no need for a "causal relationship" between the conduct and the breach. It is only necessary that the conduct be part of the "same transaction or course of conduct". The connection can be temporal, contextual, causal or a combination of all three.[2]

Revised Administration of Justice Test

The Supreme Court of Canada made a complete revision of the analytical approach in R v Grant, 2009 SCC 32 (CanLII)(complete citation pending). Under Grant, there are "three avenues of inquiry" that a court must consider:[3]

“

...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". [4] No single factor should trump any of the other factors.[5]

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.[6]

This analysis should focus on the "long-term, prospective and societal" effect of the violations.[7]

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.[8]

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".[9]

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"[10]

There is no rule requiring the automatic exclusion of a statement obtained by Charter violations.[11]

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.[12]

  1. ↑ R v Robertson, 2019 BCCA 116 (CanLII), per Fitch JA, at para 56
    R v Plaha, 2004 CanLII 21043 (ON CA), per Doherty JA, at para 44 ("There are two components to s. 24(2). The first is a threshold requirement. The impugned evidence, in this case, statement #4, must be obtained “in a manner that infringed” a right under the Charter. If the threshold is crossed, one then turns to the evaluative component of s. 24(2) – could the admission of the impugned evidence bring the administration of justice into disrepute?")
  2. ↑ Plaha, ibid., 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.")
  3. ↑ R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachlin CJ and Charron J, at para 71
  4. ↑ R v Harrison, 2009 SCC 34 (CanLII), per McLachlin CJ, at para 36 See also R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J
    R v Côté, 2011 SCC 46 (CanLII), [2011] 3 SCR 215, per Cromwell J, at paras 45 to 48
  5. ↑ Grant, supra, at para 86
  6. ↑ R v ARM, 2011 ABCA 98 (CanLII), per Topolniski JA, at para 64
  7. ↑ see R v Mahmood, 2011 ONCA 693 (CanLII), per Watt JA
    R v Dhillon, 2012 BCCA 254 (CanLII), [2012] BCJ No 1158 (CA), per D Smith JA, at para 78
    Grant, supra, at paras 69 and 70
  8. ↑ R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at para 108
  9. ↑ R v Askov, 1990 CanLII 45 (SCC), [1990] 2 SCR 1199 (SCC), per Cory J, at pp. 1219-20
  10. ↑ Grant, supra, at para 68
  11. ↑ R v NY, 2012 ONCA 745 (CanLII), per Blair JA, at paras 56 to 57
  12. ↑ R v McGuffie, 2016 ONCA 365 (CanLII), per Doherty JA (3:0), at paras 62 to 63

Appellate Standard of Review

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

The decision to exclude evidence under s. 24(2) is a matter of law, however, one with “considerable deference”. [3]

Failure to perform the s. 24(2) Charter analysis is an error or law and is reviewable on a standard of correctness.[4]

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.[5]

The appellate court should not substitute its own view of the seriousness of state conduct. The weighing of competing interests affords "strong deference".[6]

Fresh Review

Where a reversable error is found and there is sufficient record, the appellate court may conduct a fresh s. 24(2) analysis.[7]

  1. ↑ R v Mian, 2014 SCC 54 (CanLII), [2014] 2 SCR 689, at para 77
  2. ↑ R v Bacon, 2012 BCCA 323 (CanLII), per Saunders J, at para 14
  3. ↑ see R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachln CJ and Charron J, at paras 43, 86
    R v Beaulieu, 2010 SCC 7 (CanLII), per Charron J, at para 5
    R v Cote, 2011 SCC 46 (CanLII), [2011] 3 SCR 215, per Cromwell J, at para 44
  4. ↑ R v Willier, 2008 ABCA 126 (CanLII), 429 AR 135, per Slatter JA aff’d 2010 SCC 37 (CanLII), [2010] 2 SCR 429, per McLachlin CJ and Charron J
  5. ↑ R v McGuffie, 2016 ONCA 365 (CanLII), per Doherty JA, at para 64
    Grant, supra, at para 86
    R v Cole, 2012 SCC 53 (CanLII), per Fish J, at para 82
    Côté, supra, at para 44
  6. ↑ R v White, 2015 ONCA 508 (CanLII), 127 OR (3d) 32, per Hushcroft JA, at para 63
    R v Buchanan, 2020 ONCA 245 (CanLII), per Fairburn JA, at para 21
  7. ↑ R v Balendra, 2019 ONCA 68 (CanLII), at para 62
    R v Herta, 2018 ONCA 927 (CanLII), per Fairburn JA

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. ↑ R v Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980, per Dickson CJ, 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), per Donald JA
    R v Luu, 2006 BCCA 73 (CanLII), per Smith JA
  3. ↑ Spackman, supra, at para 101
    R v White, 1999 CanLII 689 (SCC), per Iacobucci J, at para 89
    R v Harrer, 1995 CanLII 70 (SCC), per La Forest J, at para 42
  4. ↑ R v Goldhart, 1996 CanLII 214 (SCC), per Sopinka J, at para 40
  5. ↑ R v Plaha, 2004 CanLII 21043 (ON CA), per Sopinka J, at #par45 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), per Fish J, 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), per Paciocco J, at para 63
    R v Pino, 2016 ONCA 389 (CanLII), per Laskin JA, at paras 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
    R v Mack, 2014 SCC 58 (CanLII), per Moldaver J
    Goldhart, supra, at para 40
    R v Keror, 2017 ABCA 273 (CanLII), per curiam
  8. ↑ R v Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980, per Wilson J (concurrence), at para 64 (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), per Cote JA, at para 55 (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 CanLII 248 (SCC), [1996] 1 SCR 8, per Sopinka J, 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]

Examples of aggravating factors to seriousness analysis include:[7]

  • severe or deliberate police conduct contravening established Charter standards;
  • major departure from Charter standards;
  • systemic or institutional abuse;
  • willful, flagrant or reckless disregard of Charter rights;
  • ignorance, negligence or wilful blindness to Charter standards;
  • a pattern of abuse; and
  • misleading testimony by the police.

Examples of mitigating factors to seriousness analysis include:[8]

  • the Charter violation is inadvertent or minor;
  • the breach is merely technical;
  • "good faith" error on the part of the police;
  • the breach results from an understandable mistake; and
  • extenuating circumstances, such as the need to prevent destruction of evidence.
  1. ↑ R v Ngai, 2010 ABCA 10 (CanLII), [2010] AJ No 96 (CA), per curiam, ("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] OJ No 3749 (CA), per Simmons JA, at para 45
  2. ↑ R v Blake, 2010 ONCA 1 (CanLII), [2010] OJ No 48 (ONCA), per Doherty JA
    R v Flett, 2016 MBPC 66 (CanLII), per Corrin J, at para 20
  3. ↑ see R v Shinkewski, 2012 SKCA 63 (CanLII), [2012] S.J. No 376 (CA), per Caldwell JA, at para 33
    R v Giulioni, 2011 NLTD 117 (CanLII), [2011] NJ No 322 (S.C.), per Goodridge J
    R v Hart, 2012 NLCA 61 (CanLII), per Barry JA
  4. ↑ R v Ramage, 2010 ONCA 488 (CanLII), per Doherty JA, at para 48
  5. ↑ R v Loewen, 2010 ABCA 255 (CanLII), per Slatter JA, at para 83
  6. ↑ R v Calderon, 2004 CanLII 7569 (ON CA), 188 CCC (3d) 481 (Ont. C.A.), per Weiler JA, at paras 93 to 94
  7. ↑ R v Oswald, 2019 BCSC 892 (CanLII), per Kent J, at para 26
  8. ↑ Oswald, supra, at para 27

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]

Technical Errors

Mere technical errors in the warrant that results in a breach, absent bad faith or negligence, should not be used to undermine or upset presumptively valid warrants.[11]

Alternatives

Where the evidence could have been obtained without infringing the Charter can render the breach more serious.[12]

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.[13]

Factors considered on a breach of s. 8 include:[14]

  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), [2009] 2 SCR 353, per McLachln CJ and Charron J, at para 74
  2. ↑ see R v Beaulieu, 2010 SCC 7 (CanLII), per Charron J
    R v Loewen, 2011 SCC 21 (CanLII), per McLachlin CJ
  3. ↑ see R v Ramage, 2010 ONCA 488 (CanLII), per Doherty JA, at para 48
  4. ↑ R v Brown, 2012 ONCA 225 (CanLII), 286 CCC (3d) 481, per curiam
  5. ↑ R v Blake, 2010 ONCA 1 (CanLII), per Doherty JA
  6. ↑ R v Greffe, 1990 CanLII 143 (SCC), per Lamer J, at para 50
  7. ↑ R v Silveira, 1995 CanLII 89 (SCC), per Cory J
  8. ↑ R v Caslake, 1998 CanLII 838 (SCC), per Lamer CJ
    R v Belnavis, 1997 CanLII 320 (SCC), per Cory J
  9. ↑ R v Nguyen, 2009 CanLII 59692 (ON SC), per Bryant J, at para 220
  10. ↑ Nguyen, ibid.
  11. ↑ R v Pammett, 2014 ONSC 1242 (CanLII), per McCarthy J, at para 10
  12. ↑ Nguyen, ibid., at para 222
  13. ↑ R v Maton, 2005 BCSC 330 (CanLII), per Romilly J, at paras 56 to 64
  14. ↑ R v Moldovan, 2009 CanLII 58062 (ON SC), per R Clark J, at para 163
    R v Buhay, 2003 SCC 30 (CanLII), per Arbour J, at para 52

Blatant, Flagrant and Extremely Serious Breaches

The most serious type of behaviour is that which is considered "flagrant", "blatant" or "extremely serious".[1]

Bad Faith

The absence of good faith does not equate to bad faith.[2]

A peace officer acting in bad faith, but later taking responsibility for the misconduct does not have a mitigating effect.[3]

  1. ↑ R v Harrison, 2009 SCC 34 (CanLII), per McLachlin CJ, at para 23
  2. ↑ R v Caron, 2011 BCCA 56 (CanLII), 269 CCC (3d) 15, per Frankel JA, at paras 38 to 42
  3. ↑ R v Buhay, 2003 SCC 30 (CanLII), [2003] 1 SCR 631, per Arbour J, at #par60 para 60
    R v Kokesch, 1990 CanLII 55 (SCC), [1990] 3 SCR 3, per Sopinka J, at p. 29 ("[T]he Crown would happily concede s. 8 violations if they could routinely achieve admission under s. 24(2) with the claim that the police did not obtain a warrant because they did not have reasonable and probable grounds." [underline in original]) R v Strauss, 2017 ONCA 628, at para 50 ("In considering the seriousness of the s. 8 breach, the trial judge also noted ... he accepted full responsibility; and he had never previously conducted a warrantless entry and search. These comments do not minimize the seriousness of the breach. It is unreasonable to say otherwise.")

Negligence

When evaluating conduct it is permissible for a judge to make findings that the police were careless or negligent.[1]

Negligent conduct will not necessarily amount to bad faith.[2]

Negligence can be found where there are errors on the face of the warrant such that "with a minimum of care and attention" by the affiant, authorizing justice, or executing officers, it would have been discovered.[3]

Overly expeditious execution of a warrant where there is knowledge on the part of the police that there was no risks of destruction of evidence may play a part in the considerations.[4]

Errors in the dates authorized for the execution of the search have been found to be negligent.[5]

  1. ↑ R v Campbell, 2018 NSCA 42 (CanLII), per Bourgeois JA, at paras 30 to 31, 37
  2. ↑ R v Cote, 2011 SCC 46, at para 71
  3. ↑ Campbell, ibid., at para 40
  4. ↑ Campbell, ibid., at para 40
  5. ↑ Campbell, ibid.
    R v LSU, 1999 CanLII 15167 (BC SC), per Stromberg-Stein J, at para 39 ("Non-compliance with the time indicated on the search, acting on an undated search warrant, and the preparation of an inadequate Information to Obtain is not merely sloppy and careless but amounts to negligence.")

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]

Good faith however cannot be equated with wilful blindness, negligence or ignorance.[2] Same goes for recklessness[3] , negligence[4] , casually,[5] , or intentionally.[6]

Good faith cannot be inferred merely from the absence of bad faith. The court must make a finding that the officers had and honestly held belief that was reasonable.[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]

Subjective and Objective Belief

The officer's subjective belief that Charter rights were not affected by their conduct does not diminish the seriousness of the breach unless the belief was objectively reasonable.[10]

Their belief will not be reasonable where the breach was "committed in ignorance of the scope of their constitutional authority".[11]

Officer's Training

The officer's quality and focus of training has some but limited importance in considering good faith.[12]

Crown Advice

Whether the Crown was consulted for advice on the matter will weigh towards the likelihood of good faith.[13] There is however little relevancy in the failure of either police or crown to take notes of their advice conversation.[14]

Evidence

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.[15]

Examples

where a demarcation in law is not easy to identify consistently, such as the point where interactions between police and civilian becomes a detention, errors on the part of the police can be understandable.[16]

Police acting on an honest but mistaken belief of the lawfulness of their conduct, such as operating under an invalid warrant or believing that a warrant to search was unnecessary, may have the effect to lessen the gravity of the breach.[17] However, acting without authorization where there were sufficient grounds to obtain one, may have the effect of aggravating the breach.[18]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachln CJ and Charron J, at para 75
  2. ↑ R v Tombs, 2012 BCSC 1826 (CanLII), per Brown J, at paras 89 to 90
  3. ↑ Grant, supra, at para 74
  4. ↑ R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at para 99
  5. ↑ R v Buhay, 2003 SCC 30 (CanLII), per Arbour J, at para 57
  6. ↑ Grant, supra, at para 133
  7. ↑ R v Caron, 2011 BCCA 56 (CanLII), 269 CCC (3d) 15, per Frankel JA, at paras 38 (" “Good faith” and its polar opposite, “bad faith” (or “flagrant” disregard), are terms of art in the s. 24(2) lexicon: Kokesch at 30. The absence of bad faith does not equate to good faith, nor does the absence of good faith equate to bad faith. To fall at either end of this spectrum requires a particular mental state.") and 41 to 42
  8. ↑ Grant, supra, at para 75
  9. ↑ R v Blake, 2010 ONCA 1 (CanLII), per Doherty JA, at para 25
  10. ↑ R v Buhay, 2003 SCC 30 (CanLII), per Arbour J, at para 59 ("officer’s subjective belief that the appellant’s rights were not affected does not make the violation less serious, unless his belief was reasonable”)
  11. ↑ R v Davidson, 2017 ONCA 257 (CanLII), per Laskin JA, at para 48
  12. ↑ R v Clayton, 2007 SCC 32 (CanLII), per Abella J, at paras 51 to 52
  13. ↑ R v Jones, 2011 ONCA 632 (CanLII), per Blair JA
  14. ↑ see Jones, ibid.
  15. ↑ R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J, at para 77
  16. ↑ Grant, supra, at para 133
  17. ↑ R v Blake, 2010 ONCA 1, per Doherty JA, at paras 24 to 27
    R v Mahmood, 2011 ONCA 693, per Watt JA, at paras 82, 119
    R v Bacon, 2012 BCCA 323, at paras 27 to 31
    R v Rocha, 2012 ONCA 707, at to 32 paras 28 to 32{{{3}}}
    R v Cole, 2012 SCC 53, at para 89 ("Where a police officer could have acted constitutionally but did not, this might indicate that the officer adopted a casual attitude toward — or, still worse, deliberately flouted — the individual’s Charter rights... . But that is not this case: The officer, as mentioned earlier, appears to have sincerely, though erroneously, considered Mr. Cole’s Charter interests. ")
    R v Cote, 2011 SCC 46, at para 71 ("...the facts that the police exhibited good faith and/or had a legitimate reason for not seeking prior judicial authorization of the search will likely lessen the seriousness of the Charter-infringing state conduct...")
  18. ↑ Cote, ibid., at para 71 (" If the police officers could have conducted the search legally but failed to turn their minds to obtaining a warrant or proceeded under the view that they could not have demonstrated to a judicial officer that they had reasonable and probable grounds, the seriousness of the state conduct is heightened. ...[A] casual attitude towards, or a deliberate flouting of, Charter rights will generally aggravate the seriousness of the Charter-infringing state conduct.")

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), per Arbour J, at paras 52, 61, 63
  2. ↑ Buhay, ibid.
  3. ↑ R v Brown, 2012 ONCA 225 (CanLII), 286 CCC (3d) 481, per curiam
  4. ↑ R v Collins, 1987 CanLII 84 (SCC), per Lamer CJ, at para 38

Police Policies and Practice

It is valid for courts to consider the existence of police policy when the infringing police conduct was in compliance with policies or practices. This will militate towards exclusion.[1]

  1. ↑ R v GTD, 2017 ABCA 274 (CanLII), per curiam (2:1) aff'd at 2018 SCC 7 (CanLII), per Brown J

Second Factor: Impact on Personal Interests

The second factor considers what impact the unlawful conduct had upon the accused. The greater the impact on the accused's personal interests, the more likely admission of the evidence will bring the administration of justice into disrepute.[1]

The impact on 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.[2]

Failure to begin by identifying the interests impacted may in certain circumstances amount to a reversable error.[3]

Ranges of Impact

The impact can range from fleeting and technical to profoundly intrusive.[4]

Being stopped and searched without justification impacts liberty and privacy in more than a trivial manner. [5]

Stopping a vehicle creates a lesser impact on personal interests than a search of a residence.[6]

In the context of a 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.[7]

Denial of Ownership of Evidence

The fact that the accused denies ownership in the item seized is an "important factor" to consider[8]


  1. ↑ R v Côté, 2011 SCC 46 (CanLII), per Cromwell J, at para 47
  2. ↑ R v MacMillan, 2013 ONCA 109, per Rosenberg JA, at para 77 ("The majority of the Supreme Court in Grant (2009) mandated,... that the court evaluate the extent to which the breach actually undermined the interests protected by the right infringed. This requires the court to identify the interests engaged by the infringed right and examine the degree of impact from the violation.")
  3. ↑ MacMillan, ibid., at paras 77 to 85
  4. ↑ R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachln CJ and Charron J
  5. ↑ R v Harrison, 2009 SCC 34 (CanLII), per McLachlin CJ, 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.”)
  6. ↑ see R v Bacon, 2012 BCCA 323 (CanLII), [2012] BCJ No 1571 (CA), per Saunders JA (3:0), at para 34
    R v Loewen, 2011 SCC 21 (CanLII), [2011] 2 SCR 167, [2011] SCJ No 100, per curiam, at paras 12 and 13
    Harrison, supra, at para 31
  7. ↑ R v Booth, 2010 ABQB 797 (CanLII), per Clackson J
  8. ↑ R v Harrison, 2009 SCC 34 (CanLII), [2009] 2 SCR 494, per McLachlin CJ, at paras 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), per Cromwell J, at para 70
  2. ↑ R v MacMillan, 2013 ONCA 109 (CanLII), per Rosenberg JA (3:0) starting, at para 63
  3. ↑ R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachln CJ and Charron J, 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 their 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]

The third factor will "seldom tip the balance in favour of admissibility on its own". Rather it will work in support of the second factor analysis supporting admission.[7]

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.[8] 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.[9]

It is inconsistent with the Charter to "view that reliable evidence is admissible regardless of how it was obtained".[10]

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 circumstances will impact trial fairness and the truth-seeking function even more.[11]

Importance to the Crown's Case

The importance of the evidence on the Crown's case is also important. [12] Where the exclusion would effectively "gut" the case, it will be a factor in favour of admission.[13]

Seriousness of Offence

The seriousness of the offence has some importance,[14] but not as much as it did under the old "Stillman test".[15] Nevertheless, seriousness can "cut both ways".[16] 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".[17]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J
  2. ↑ Grant, ibid., at para 79
  3. ↑ R v Manchulenko, 2013 ONCA 543 (CanLII), per Watt JA, at para 92
  4. ↑ R v McGuffie, 2016 ONCA 365 (CanLII), per Doherty JA, at para 63 ("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")
    R v Spencer, 2014 SCC 43 (CanLII), [2014] 2 SCR 212, per Cromwell J, at para 75
    R v Jones, 2011 ONCA 632 (CanLII), 107 OR (3d) 241, per Blair JA, at para 75
  5. ↑ McGuffie, ibid., at para 63
  6. ↑ McGuffie, ibid., at para 63
  7. ↑ R v Robertson, 2019 BCCA 116 (CanLII), per Fitch JA, at para 65
    R v Le, 2019 SCC 34 (CanLII), per Brown and Martin JJ, at para 142
  8. ↑ Grant, supra, at para 83
    R v Atkinson, 2012 ONCA 380 (CanLII), [2012] OJ No 2520 (CA), per Watt JA, at para 93
  9. ↑ 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.")
  10. ↑ Grant, supra, at para 80
  11. ↑ Cote, supra, at para 47
  12. ↑ Grant, supra, at para 83
  13. ↑ see R v MacDonald, 2012 ONCA 495 (CanLII), [2012] OJ No 3210 (CA), per MacPherson JA
  14. ↑ R v Reddy, 2010 BCCA 11 (CanLII), per Frankel JA, at para 94
    R v Stevens, 2011 ONCA 504 (CanLII), per Armstrong JA, at para 62
  15. ↑ R v Tombs, 2012 BCSC 1826 (CanLII), per N Brown J, at para 92
  16. ↑ Grant, supra, at para 84
  17. ↑ see R v Martin, 2010 NBCA 41 (CanLII), [2010] NBJ No 198 (CA), per Richard JA, 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]

The repute of the administration of justice will be "significantly undermined" where evidence is included at trial which was obtained "from the most private 'place' in the home on the basis of misleading, inaccurate, and incomplete Informations" that formed the foundation of the warrant.[3]

  1. ↑ R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at para 108
  2. ↑ R v McGuffie, 2016 ONCA 365 (CanLII), per Doherty JA, at para 6
  3. ↑ R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J, at para 109

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), [2009] 2 SCR 353, per McLachln CJ and Charron J, 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), per McLachlin CJ and Charron J, 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), [2009] 2 SCR 353, per McLachln CJ and Charron J, 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), [2009] 2 SCR 353, per McLachln CJ and Charron J, 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 to 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 complied with.[1]

  1. ↑ R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297, per Cory J, 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), 196 CCC (3d) 481 (SCC), per Charron J, at paras 3, 24 to 27, 49 55 and 58
  2. ↑ R v Vandenberg, 2010 ABQB 261 (CanLII), per LJ Smith J
  3. ↑ R v Bryce, 2009 CanLII 45842 (ON SC), [2009] OJ 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, per Marrocco J
  2. ↑ R v Clayton, 2005 CanLII 16569 (ON CA), per Doherty JA at 41 appealed at 2007 SCC 32 (CanLII), [2007] 2 SCR 725, per Abella J
  3. ↑ R v Danvers, 2005 CanLII 30044 (ON CA), per Armstrong JA, at para 77
    R v Bellamy, 2008 CanLII 26259 (ON SC), [2008] 175 CRR (2d) 241, per Boswell J, at para 76
    R v Brown, 2006 CanLII 39311 (ON SC), [2006] OJ No 4681 (Ont. SCJ), per Trafford J, at para 9
  4. ↑ R v Clayton, 2007 SCC 32 (CanLII), per Abella J, at para 110
  5. ↑ R v Mpamugo, 2009 CanLII 9741 (ON SC), [2009] OJ No 953 (S.C.), per Baltman J, at para 48
    R v Harrison, 2009 SCC 34 (CanLII), per McLachlin CJ, 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), per Wilson J, at para 99
    R v Greffe, 1990 CanLII 143 (SCC), per Lamer J
    R v Silveira, 1995 CanLII 89 (SCC), per Cory J
    R v Nguyen, [2005] OJ No 1948 (SCJ)(*no CanLII links)
    R v Brown, 2009 ONCA 563 (CanLII), 251 OAC 264, per curiam, at para 33
    R v Brown, 2009 ONCA 563 (CanLII), [2007] OJ No 5659 (SCJ), per Nordheimer J, at para 20 appealed to , per curiam
    R v Smickle, 2013 ONCA 678 (CanLII), 304 CCC (3d) 371, per Doherty JA, at paras 28 to 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]

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.”[2]

Where telewarrant process was used "without having adequately demonstrated that it was impractical to appear in person" is not considered a "serous breach".[3]

Admission of evidence obtained from unacceptable police conduct or practices in performing warrantless searches leaves justice with a "black eye".[4]

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".[5]

Breach of Solicitor-Client Privilege

An unlawful seizure of solicitor-client privilege documents should include consideration of:[6]

  • the number of seized records over which privilege was indeed claimed
  • whether notes were taken relating to the seizure of the items
  • whether the records were indeed looked at
  • whether any privileged information was disclosed to police
  • whether the Crown sought to adduce any privilege documents.


  1. ↑ R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachlin CJ and Charron J, at para 133 ("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...")
  2. ↑ R v Silveira, 1995 CanLII 89 (SCC), per Cory J, at para 148
  3. ↑ R v Lacelle, 2013 ONCA 390 (CanLII), per curiam, at para 11
  4. ↑ R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at para 110
  5. ↑ R v Sutherland, 2000 CanLII 17034 (ON CA), per Carthy JA, at para 15
  6. ↑ R v Schulz, 2018 ONCA 598 (CanLII), per Brown JA, at para 26

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 CanLII 70 (SCC), [1995] 3 SCR 562, per La Forest J, at para 35
  2. ↑ R v Tan, 2014 BCCA 9 (CanLII), per Bennett JA
  3. ↑ R v Cook, 1998 CanLII 802 (SCC), per Cory and Iacobucci JJ
    R v Hape, 2007 SCC 26 (CanLII), 220 CCC (3d) 161 (SCC), per LeBel J, at para 109
  4. ↑ R v Mathur, 2007 CanLII 38943 (ON SC), per Marrocco J, at para 33
  5. ↑ Harrer, supra, 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), [2009] 2 SCR 353, per McLachln CJ and Charron J, 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), per Lamer CJ
  2. ↑ R v Stillman, 1997 CanLII 384 (SCC), per Cory J

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), per Cory J - lists the first three factors
  2. ↑ Watt at 41.03
  3. ↑ Stillman
  4. ↑ R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachln CJ and Charron J

Other Uses of Excluded Evidence

Evidence that has been subject to an exclusion under s. 24(2) of the Charter in a criminal trial will normally be inadmissible for other purposes, including a dangerous offender applications.[1]

Where the excluded evidence is a statement, the excluded statement will not normally be permitted to be used to impeach the accused during cross-examination.[2]There may however be in "very limited circumstances" cases where this should be permitted.[3]

  1. ↑ R v Ricciardi, 2018 ONSC 445 (CanLII), per Di Luca J
  2. ↑ R v Calder, 1996 CanLII 232 (SCC), per Sopkina J, at para 34 ("The effect of destroying the credibility of an accused who takes the stand in his or her defence using evidence obtained from the mouth of the accused in breach of his or her Charter rights will usually have the same effect as use of the same evidence when adduced by the Crown in its case in chief for the purpose of incrimination.")
  3. ↑ Calder, ibid., at para 35

Relevant Charter Rights

Other Remedies for Charter Breaches

See Also

External Links

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