Summary of Exclusion Under 24(2) #

Where an accused establishes that a Charter right has been breached in the course of an investigation or prosecution, section 24(2) of the Charter allows for the exclusion of the evidence obtained as a consequence of the breach.

Section 24(2) states: “Where…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.”

On an application under section 24(2), the accused bears the onus of establishing, on a balance of probabilities, that the admission of the impugned evidence would bring the administration of justice into disrepute. (Collins)

Two step inquiry #

(1) Threshold requirement #

In cases where police have obtained the evidence at issue in a manner directly connected to a Charter breach, there will be no question about whether the evidence was “obtained in a manner that infringed or denied any rights”. But in some cases, this may not be clear.

In cases where the court must decide whether evidence was “obtained in a manner” that infringed the accused’s rights, it undertakes a ‘threshold inquiry.’

Summarizing principles that apply in this inquiry, the SCC in Mack held that:

Establishing a strict causal relationship between the breach and the subsequent discovery of evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are 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 “remote” or “tenuous” connection between the breach and the impugned evidence will not suffice. (See also Beaver and Wittwer)

‘Fresh start’ doctrine #

The SCC in Beaver held that evidence will not be ‘obtained in a manner’ that breached a Charter right where police make a ‘fresh start’ from an earlier Charter breach by taking steps that have the effect of “severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous.”

Whether they have done so involves a “case-specific factual inquiry”, though “potentially illustrative indicators” include:

• informing the accused of the Charter breach and “dispelling its effect with appropriate language”;
• cautioning the accused and giving them a chance to consult counsel after the breach but before obtaining the impugned evidence;
• “[w]hether and how different police officers interacted with the accused after the Charter breach but before the impugned evidence was obtained”; and
• “[w]hether the accused was released from detention after the breach but before the impugned evidence was obtained.”

(2) Evaluative component #

Once satisfied that the evidence was ‘obtained in a manner’ that breached one or more Charter rights, the court moves to the evaluative component, which involves assessing whether admission of the evidence would “bring the administration of justice into disrepute”. The leading authority on this component is R v Grant, 2009 SCC 32.

Grant test #

In R v Grant, the SCC reformulated the test for how courts should apply section 24(2), overturning the earlier test set out in Collins and Stillman (which had tended make exclusion an automatic consequence where evidence was ‘derivative’ of a Charter breach and otherwise non-discoverable).

The Court in Grant held that s 24(2) is “not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns… [i.e.,] the broad impact of admission of the evidence on the long-term repute of the justice system.”

The general question to be asked under 24(2) is: “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.” (Grant, para 68)

The concern here is not on “immediate reaction to the individual case,” but whether “the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence.”

Three lines of inquiry #

Assessing this involves a consideration of three “lines of inquiry”:

i. The seriousness of the Charter-infringing conduct;

-was the police/state conduct inadvertent or minor?

-was it reckless or deliberate? (negligence is not to be equated with good faith) [The SCC in Le added that an absence of bad faith does not equate to a finding of good faith]

-where there extenuating circumstances (such as a need to preserve evidence)?

-was the conduct part of a pattern of abuse?

-would the admission of the evidence bring admin of justice into disrepute by sending the message that courts condone this conduct by failing to disassociate from it?

(The more severe or deliberate the conduct, the greater the need to disassociate from it – favouring exclusion.)

ii. The impact of the breach on the Charter-protected interests of the accused;

-what interests are engaged by the right in question?

(i.e., for s. 8: privacy, personal integrity, and security; for s. 7 and 10(b), the right to silence, the principle against self-incrimination, etc.)

-how serious was the violation of that interest?

(The more serious the incursion, the greater the risk that admission will bring the administration of justice into disrepute, favouring exclusion.)

iii. The impact of exclusion on society’s interests in the adjudication of the case on its merits.

-to assess this court must ask: “Would the truth-seeking function of the trial process be better served by admission or by its exclusion?”

-factors to consider:

-does the Charter breach undermine the reliability of the evidence (or is it real evidence?)

-is the evidence essential to the Crown’s case?

-the more reliable and relevant the evidence, the more it would favour admission.

-the seriousness of the offence is to be considered but is not thought to clearly favour admission or exclusion (there is a risk of disrepute when excluding evidence in the case of a serious offence, but also a risk of disrepute arising from conviction resting on faulty evidence). The test under 24(2) should not become a balancing between the seriousness of the breach and the seriousness of the offence.

-the Supreme Court in Harrison held:

“The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case.  The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute.” 

-See Professor Ferguson’s chart summarizing different kinds of evidence or cases and the likely outcome of the 24(2) analysis (as set out in Grant). [“Application of Grant to forms of evidence”]

24(2) in practice / on an exam #

Step 1: confirm that police obtained the evidence at issue “in a manner” that infringed one or more of the accused’s Charter rights. (If this isn’t obvious, apply the set out in Mack cited above.)

Step 2: Proceed to section 24(2) and apply the analysis set out in Grant, or more specifically:

a. cite Section 24(2)

b. note that the leading decision on how to interpret and apply s. 24(2) is R v Grant

c. note that the Supreme Court in Grant holds that the question to be asked when interpreting 24(2) is whether a reasonable person, considering all relevant circumstances and values underlying the Charter, would conclude that the admission of the evidence would, in the long-term, bring the administration of justice into disrepute?

d. to answer this question, a court must consider three lines of inquiry and the factors to be considered under each… [set each out as they appear earlier in this summary, together with the factors the Supreme Court identifies]

e. after setting out each individual line of inquiry, and the factors to be considered, apply question/factors to the facts of the present case, and come to a conclusion about whether each line of inquiry favours admission or exclusion.

f. state a final conclusion about admissibility or exclusion that weighs your conclusions under all three lines of inquiry.