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

This page was last substantively updated or reviewed July 2021. (Rev. # 81408)

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General Principles

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

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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.

Standing

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

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.

The standard of proof is on the balance of probabilities.

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.

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".

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).

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

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.

Interpretation

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

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.

Types of Evidence

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

"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.

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).

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.

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.

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. Under Grant, there are "three avenues of inquiry" that a court must consider:

“

...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". No single factor should trump any of the other factors.

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.

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

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.

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".

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"

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

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.

Appellate Standard of Review

An 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".

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

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

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.

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

Fresh Review

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

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.

The nexus element requires that the evidence be obtained by the breach. Without causation there is no remedy under s. 24(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.

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

A strict causal connection between the breach and the evidence is not required. Rather a "purposive and generous approach" should be taken. The judge should look at the entire chain of events between the accused and the police. The evidence is said to be "tainted" by the breach if the evidence "can be said to be part of the same transaction or course of conduct". This determination can be identified "causally, temporally and/or contextually" or any combination of these as longa s the connection is not "too tenuous or too remote".

A temporal connection is not determinative. Whether the connection is "too remote" should be dealt with on a case-by-case basis.

A strictly "causal" connection is not required to apply s. 24(2). It is however a relevant consideration weighing against exclusion.

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".

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

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.

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

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"

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

Factors the court must consider include:

• 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.

Examples of aggravating factors to seriousness analysis include:

• 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:

• 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.

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.

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

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

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

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]”.

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. 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.

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

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

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

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.

Alternatives

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

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.

Factors considered on a breach of s. 8 include:

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.

Blatant, Flagrant and Extremely Serious Breaches

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

Bad Faith

The absence of good faith does not equate to bad faith.

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

Negligence

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

Negligent conduct will not necessarily amount to bad faith.

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.

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.

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

Good Faith

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

Good faith however cannot be equated with wilful blindness, negligence or ignorance. Same goes for recklessness , negligence , casually, , or intentionally.

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.

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

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.

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

Officer's Training

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

Crown Advice

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

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.

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.

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. However, acting without authorization where there were sufficient grounds to obtain one, may have the effect of aggravating the breach.

Urgency or Necessity

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

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.

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

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.

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.

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.

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

Ranges of Impact

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

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

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

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.

Denial of Ownership of Evidence

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

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. However, putting too much weight on discoverability may be an error in law.

The law remains that the impact of a breach is lessened and the admission is more likely where the derivative evidence was otherwise discoverable. 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".

Third Factor: Interest in Trying Case on Merits

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

This factor "reflects society's expectation that the criminal allegations will be adjudicated according to their merits." 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". However, where both favour exclusion, the third factor will "seldom, if ever, tip the balance in favour of admissibility'. When both favour inclusion, the third factor will "almost certainly confirm the admissibility of the evidence".

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.

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. 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.

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

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.

Importance to the Crown's Case

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

Seriousness of Offence

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

Balancing of Factors

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

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

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.

Analysis for Certain Types of Evidence

Statements by Accused

The common law historically treats statements different from other types of evidence. 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.

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

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".

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

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".

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

Non-Bodily Physical Evidence

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

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

Derivative

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

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

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

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

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

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

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.

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.

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

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

Weapons Offences

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

Offences involving handguns is a “serious and growing societal danger”.

There is a strong emphasis on the need to denounce and deter the use of firearms in public places. There has been judicial notice that as of 2007 there has been a national increase in gun violence and gun-related offences.

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

Drugs and Guns Offences

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

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.

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.”

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

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

Entry into a Dwelling House

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".

Breach of Solicitor-Client Privilege

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

• 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.

Failure to File a Report to Justice

A failure to file a report to justice "as soon as practicable" is a s. 8 violation.

A complete subversion of the supervision authority of a detention order will weigh in favour of exclusion.

Evidence Collected Outside Canada

Th Charter generally does not apply to foreign authorities.

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. All relevant factors must be considered.

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

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"

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.

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. 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. 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.

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. 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.

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.

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.

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.

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.There may however be in "very limited circumstances" cases where this should be permitted.

Relevant Charter Rights

• Rights Against Search and Seizure
• Right to Counsel
• Right Against Arbitrary Detention
• Right to be Informed of Charges

Other Remedies for Charter Breaches

• See Costs
• Stay of Proceedings

See Also

External Links

• Section 24(2) paper