Enforcement

38 Section 24(2): Exclusion of Evidence

Provision

24. (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 circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Similar provisions

There is no similar provision in the Canadian Bill of Rights or in the American Bill of Rights.

Purpose

The purpose of subsection 24(2) is to maintain the good repute of the administration of justice. Subsection 24(2) looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. This inquiry is an objective one, which asks 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 (R. v. Grant, [2009] 2 S.C.R. 353 at paragraph 67-68).

The focus of subsection 24(2) is not only long-term, but is also prospective and societal. Subsection 24(2) starts from the proposition that the fact of the Charter breach means damage has already been done to the administration of justice and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Further, the section is not aimed at punishing the police or providing compensation to the accused, but rather at the broad impact of admission of the evidence on the long-term repute of the justice system (Grant, supra at paragraphs 69-70).

Analysis

1. Prerequisites to a remedy

There are three preconditions to the remedy of exclusion under subsection 24(2):

  1. The applicant’s rights or freedoms as guaranteed by the Charter must have been unjustifiably limited or denied;
  2. The evidence must have been obtained in a manner that unjustifiably limited or denied a guaranteed right or freedom; and
  3. Having regard to all the circumstances, the admission of the evidence in the proceedings must be capable of bringing the administration of justice into disrepute (Grant, supra; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Fliss, [2002] 1 S.C.R. 535).

2. Nature of the provision

Like subsection 24(1), subsection 24(2) of the Charter is a remedial provision. It is not an “independent source of Charter rights” but merely provides a remedy for their breach (R. v. Terry, [1996] 2 S.C.R. 207).

This provision does not provide an automatic exclusionary rule for unjustifiable limits to the Charter (R. v. Strachan, [1988] 2 S.C.R. 980). Subsection 24(2) obliges law enforcement authorities to respect the exigencies of the Charter and precludes improperly obtained evidence from being admitted when it impinges on the fairness of the trial (R. v. Burlingham, [1995] 2 S.C.R. 206 at paragraph 25). Subsection 24(2) is “not a remedy for police misconduct” (Collins, supra), and thus is not designed to discipline the police. However, police conduct is a factor to be considered in determining whether the admission of the evidence would bring the administration of justice into disrepute (Grant, supra at paragraphs 72-75; R. v. Harrison, [2009] 2 S.C.R. 494 at paragraphs 37-42; Strachan, supra), as is seen further below.

3. Procedure for seeking a remedy

Although there may not be one single procedure for seeking a subsection 24(2) remedy, the practice of giving early notice to the Crown that subsection 24(2) will be invoked, discussed in decisions such as R. v. Kutynec (1992), 12 C.R. (4th) 152(Ont. C.A.), R. v. Loveman (1992), 8 O.R. (3d) 51 (Ont. C.A.) and R. v. Dwernychuk (1992), 77 C.C.C. (3d) 385(Alta. C.A.), appears to be appropriate. Note, however, that the rules are not intended to be treated as inflexible, and see the statement in Kutynec, supra expressing “reluctance to propound a detailed judge-made rule to cover all Charter motions” (at paragraph 38).

Indeed, as noted by Doherty J.A. in Loveman, supra, a trial judge must be able to control the trial proceedings to ensure fairness to all parties and preserve the integrity of the trial process. While, in an appropriate case, this may include the refusal to entertain a subsection 24(2) application due to insufficient notice, where a Charter right is at stake a trial judge will be reluctant to foreclose an inquiry into an alleged violation (Loveman, supra at paragraph 7). In Loveman, it was ultimately found that the trial judge should have allowed the accused to bring the subsection 24(2) application even though Crown counsel had not received notice prior to trial (See also R. v. Pelletier (1995), 97 C.C.C. (3d) 139 (Sask.C.A.)).

Note that orders excluding evidence should be final, since revisiting such a decision over the course of a trial would interfere with the accused’s ability to know the case to meet (R. v. Cole 2012 CSC 53, [2012] 3 R.C.S. 34 at paragraphs 101-104).

4. Onus and standard of proof

The phrase “if it is established” places a burden of persuasion on the applicant that is discharged on the standard of a balance of probabilities. It rests with the applicant to prove on a balance of probabilities that a Charter right has been unjustifiably limited before being entitled to the remedy of exclusion under subsection 24(2) (Collins, supra). The onus in relation to individual issues, however, may shift to the Crown. For instance, in applications based on a paragraph 10(b) Charter violation, once the denial of the right to counsel is established, the onus will shift to the Crown to show that the accused would have acted in the same manner had the paragraph 10(b) violation not occurred (R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Harper, [1994] 3 S.C.R. 343).

The onus of proof on whether the admission of evidence would bring the administration of justice into disrepute rests with the party opposing admission of the evidence (Collins, supra).

5. “Obtained in a manner…”

It is not necessary that there be a strict causal nexus between the limitation of the Charter and the obtaining of evidence before a remedy may be granted under subsection 24(2) (Strachan, supra; Harper, supra; Burlingham, supra). In Strachan, supra, the accused had argued, among other things, that his right to counsel under paragraph 10(b) had been denied and that evidence of drugs and drug-related paraphernalia was properly excluded by the trial judge under subsection 24(2) of the Charter. Dickson C.J. ruled that the phrase “obtained in a manner” should not be interpreted to impose a strict causal nexus between the Charter limit and the evidence sought to be excluded. Indeed, in that case it was held that imposing a strict causal requirement would effectively preclude from subsection 24(2)’s application much of the real evidence obtained following an unjustifiable limit of the right to counsel (paragraph 10(b)); this is because there is often no direct causal relationship between the paragraph 10(b) limit and the real evidence obtained in the context of a valid search or arrest; there will only be a nexus to the paragraph 10(b) limit where the evidence in question is derivative, obtained as a direct result of a statement or other indication made by the accused (Strachan at paragraph 43). That being said, as explained by Wilson J. for a unanimous Court in R. v. Black, [1989] 2 S.C.R. 138, Strachan should not be taken to preclude courts’ consideration of causal connection where it is clearly present and the evidence obtained is clearly derivative (paragraph 42). Rather, the intention was instead to establish a broader test than “causal connection” where the effect, otherwise, would be to exclude from consideration under subsection 24(2) much of the real evidence obtained after a paragraph 10(b) limit or the unjustifiable limit of another Charter right where causal nexus would be unlikely.

Similarly, while a temporal link between the unjustifiable Charter limit and the discovery of evidence figures prominently in the assessment of whether the limit occurred in the course of obtaining the evidence (particularly where the Charter limit and the discovery of evidence occur in the course of a single transaction), the presence of a temporal connection is not determinative. “Situations will arise where evidence, though obtained following the unjustifiable limit of a Charter right, will be too remote from the violation to be ‘obtained in a manner’ that infringed the Charter”: Strachan, supra at 1005-6; R. v. Grant, [1993] 3 S.C.R. 223, [hereinafter Grant (1993)].

Instead, what is required is an examination of the “entire relationship” between the evidence and the unjustifiable Charter limit. This examination should include consideration of whether a temporal link existed, as well as an evaluation of the strength of the connection between the impugned evidence and the limit (R. v. Goldhart, [1996] 2 S.C.R. 463). A connection that is merely “remote” or “tenuous” will not suffice (R. v. Wittwer, [2008] 2 S.C.R. 235, at paragraph 21; Goldhart, supra at paragraph 40; R. v. Plaha, (2004), 189 O.A.C. 376at paragraph 45).

With regard to evidence in the form of statements, in considering whether a statement is tainted by an earlier unjustifiable Charter limit, the courts have adopted a purposive and generous approach. Pursuant to this approach, the statement will be seen as tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct (Wittwer, supra at paragraph 21; Strachan, supra at 1005). The required connection between the limit and the subsequent statement may be “temporal, contextual, causal or a combination of the three” (Wittwer, supra at paragraph 21; Plaha, supra at paragraph 45). Consideration of what evidence to exclude should begin with the evidence that is most proximate to the unjustifiable Charter limit and then work towards evidence that is more remote. There may be times when more remote evidence might not be admitted if its admission would have the same effect as admitting the most proximate evidence (Burlingham, supra).

6. Test of exclusion: would admission of the evidence be capable of bringing the administration of justice into disrepute?

This is the final precondition (see (iii) above under Prerequisites to a Remedy) to the remedy of exclusion under subsection 24(2). In Grant, supra, the Supreme Court adopted a new, more flexible approach to the exclusion of evidence under subsection 24(2) and moved away from the framework which had previously been set out in Collins, supra and R. v. Stillman, [1997] 1 S.C.R. 607.

Pursuant to Grant, supra, whether the admission of evidence obtained in an unjustifiable limit of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by subsection 24(2), adopting a long-term, forward-looking and societal perspective. Specifically, courts 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;
  2. the impact of the breach on the Charter-protected interests of the accused; and
  3. society’s interest in the adjudication of the case on its merits (Grant, supra at paragraph 71).

These concerns can be said to have evolved from the considerations articulated in Collins, supra, which were as follows: (a) fairness of the trial; (b) seriousness of the violation; and (c) effect of exclusion.

The court’s role on a subsection 24(2) application is to balance the assessments under each of these lines of inquiry, which encapsulate consideration of “all the circumstances” of the case, in order to determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute (Grant, supra at paragraphs 71, 85; R. v. Mian 2014 CSC 54, [2014] 2 R.C.S. 689 at paragraph 88). Note that the question “disrepute in whose eyes?” is answered by examining the reactions of “a reasonable man, dispassionate and fully apprised of the circumstances of the case”. A reasonable man or woman is “usually the average person in the community, but only when that community’s current mood is reasonable” (Collins, supra at 282, or paragraph 33 QL; R. v. Calder, [1996] 1 S.C.R. 660 at paragraph 34).

The applicant must establish that the conduct of the government actors is so unacceptable that the “admission of evidence obtained in such a manner would tend to bring the administration of justice into disrepute” (Burlingham, supra at paragraph 75) in the sense of “diminishing the esteem” in which the public holds the administration of justice (Goldhart, supra at paragraph 27). For example, for the police to lie or deliberately mislead individuals with respect to their Charter rights is “fundamentally unfair and demeaning of those Charter rights”. To countenance such government conduct would likely bring the administration of justice into disrepute (R. v. Cook, [1998] 2 S.C.R. 597 at paragraph 60).

LeDain J. per the minority in R. v. Therens, [1985] 1 S.C.R. 613 had contended that the test for exclusion is lower than the community shock test set out in the pre-Charter confessions case of Rothman v. The Queen, [1981] 1 S.C.R. 640. This was authoritatively confirmed in Collins, supra. See also R. v. Harrer, [1995] 3 S.C.R. 562 where courts were found to have a common law discretion to exclude evidence whose admission would render a trial unfair even though its admission would not shock the community’s conscience.

(i) Seriousness of the Charter-infringing state conduct

Courts must assess whether admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. As a general proposition, the more severe or deliberate the state conduct that led to the unjustifiable Charter limit, the greater the need for the courts to dissociate themselves by excluding evidence linked to that conduct in order to preserve public confidence in, and ensure state adherence to, the rule of law (Grant, supra at paragraph 72; Harrison, supra at paragraphs 37-42; R. v. Elshaw, [1991] 3 S.C.R. 24; Burlingham, supra). The more serious the limit, the more likely it is that the fairness of the trial will be affected, particularly where it results in conscripting the accused to incriminate himself (Elshaw, supra; Burlingham, supra).

This inquiry requires an evaluation of the seriousness of the state conduct that led to the unjustifiable limit. The concern is not to punish the police or to deter Charter limits, but instead to preserve public confidence in the rule of law and its processes. As stated in Grant, supra, “[i]n order to determine the effect of admission of the evidence on public confidence in the justice system the court…must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter” (at paragraph 73).

Extenuating circumstances (i.e. whether the police conduct was motivated by urgency and/or to prevent the loss or disappearance of evidence) may attenuate the seriousness of the Charter breach (R. v. Silveira, [1995] 2 S.C.R. 297; Strachan, supra). Similarly, “good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct (Grant, supra at paragraph 75; R. v. Hamill, [1987] 1 S.C.R. 301; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Colarusso, [1994] 1 S.C.R. 20; Silveira, supra). While good faith is not in itself determinative, it is certainly an important consideration in the decision whether to admit evidence obtained contrary to the Charter (R. v. Jacoy, [1988] 2 S.C.R. 548; Hamill, supra; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Wiley, [1993] 3 S.C.R. 263; Colarusso, supra; R. v. Evans, [1996]1 S.C.R. 8[hereinafter Evans (1996)]. However, police good faith, in the sense of an honest belief, does not mean that any honest belief, however unreasonable, will preclude the rejection of evidence under subsection 24(2) (R. v. Harris, (1987), 35 C.C.C. (3d) 1 (Ont. C.A.)). Further, it is clear that actual ignorance of Charter standards must not be rewarded or encouraged, and that negligence or wilful blindness cannot be equated with good faith (R. v. Genest, [1989] 1 S.C.R. 59 at 87; R. v. Kokesch, [1990] 3 S.C.R. 3 at 32-33; R. v. Buhay, [2003] 1 S.C.R. 631 at paragraph 59; Grant, supra at paragraph 75).

An important consideration here is also whether the unjustifiable limit was “part of a larger pattern of disregard for Charter rights” (Strachan, supra at paragraph 50). Indeed, evidence that the Charter-infringing conduct was part of a pattern of abuse will generally tend to support exclusion (Grant, supra at paragraph 75). Dangerous and erroneous police perceptions of the reach of police powers or the propriety of questionable practices must be emphatically rejected. Judicial acquiescence in such conduct by the reception of evidence obtained through that conduct would bring the administration of justice into disrepute (R. v. Simpson, (1993) 12 O.R. (3d) 182 (Ont. C.A.); R. v. Gray (1993), 81 C.C.C. (3d) 174 (Man. C.A.); R. v. Innocente (1992), 113 N.S.R. (2d) 256 (N.S.C.A.)).

Unjustifiable limits have also been condemned, and the remedy of exclusion has followed, where the Court has found that the conduct in question was “deliberate”, involved a “flagrant breach”, or was in “blatant disregard” of Charter guarantees (R. v. Manninen, supra; Therens, supra; Collins, supra; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Dersch, [1993] 3 S.C.R. 768). Such a remedy has even been found to apply in the extradition context, where the Supreme Court of Canada has found that an extradition judge may exclude evidence under subsection 24(2) if it was gathered by the foreign authorities in such an abusive manner that its admission to the committal hearing would be unfair under section 7 of the Charter (United States of America v. Shulman, [2001] 1 S.C.R. 616 at paragraph 56; United States of America v. Ferras, [2006] 2 S.C.R. 77 at paragraph 60; United States of America v. Anekwu, [2009] 3 S.C.R. 3 at paragraph 21). Note that, even where there was no wilful disregard for Charter rights, a significant departure from the standard of conduct expected of police will go to the seriousness of state conduct (R. v. Taylor 2014 CSC 50, [2014] 2 R.C.S. 495 at paragraph 39 ). Misleading testimony by police at trial can also be relevant to the first Grant factor (Mian, supra at paragraph 88).

It is worth noting that an unjustifiable limit may not be “flagrant” when police rely upon ostensible statutory authority to search without a warrant (Grant (1993), supra; R. v. Plant, [1993] 3 S.C.R. 281; Wiley, supra), or where the need for or specific requirements relating to a warrant is the subject of a “grey area” of conflicting caselaw (Cole, supra at paragraph 86; R. v. Vu 2013 CSC 60, [2013] 3 R.C.S. 657 at paragraph 70 ; R. v. Aucoin 2012 CSC 66, [2012] 3 R.C.S. 408 at paragraph 50). This principle is not meant to encourage police to resort to warrantless searches where there is a legal grey area; however, evidence that police’s view of the law was reasonable helps bolster the argument that the search can be supported under the first Grant factor (R. v. Spencer 2014 CSC 43, [2014] 2 R.C.S. 212 at paragraph 77).

However, once the illegality of the search power is judicially clarified, it is extremely difficult to rely upon “good faith” in the execution of the search based on that power (Silveira, supra).

Trivial misconduct and “minor police stupidity” will not merit the remedy of exclusion: see the minority reasons of Dickson C.J.C. in R. v. Greffe, [1990] 1 S.C.R. 755. Also worthy of consideration under this factor is whether the limit was inadvertent, or merely of a technical nature (Greffe, supra, per minority). Excluding evidence essential to substantiate the charge where the limit of the Charter was trivial or, at least not serious, can bring the administration of justice into disrepute (Genest, supra; R. v. Belnavis, [1997] 3 S.C.R. 341). Nevertheless, where the unjustifiable limit involved could not be characterized as trivial, the evidence in dispute may still be admitted because excluding it would occasion greater disrepute to the justice system than allowing for its admission (Simmons, supra; Jacoy, supra; Evans (1996), supra). This was the view of Southin J.A. who, in R. v. Evans, [1988] 45 C.C.C. (3d) 523 (B.C.C.A.) [hereinafter Evans (1988)], stated that nothing could be more detrimental to the repute of the administration of justice “than letting the accused, a self-confessed killer, go free to kill again on the basis of such infringements” (at 564). Note, however, that McLachlin J. [as she then was], on appeal, ruled that the admission of the accused’s statements in the circumstances of the case would bring the administration of justice into disrepute: R. v. Evans, [1991] 1 S.C.R. 869 [hereinafter Evans (1991)] at paragraphs 63-65 QL.

In addition, in the context of a section 8 violation, a lack of reasonable and probable grounds is an indicator of seriousness of state conduct. Conversely, the presence of “reasonable and probable grounds” reduces the seriousness of an unjustifiable Charter limit based on the absence of a search warrant, and affects the determination of whether to exclude the evidence under subsection 24(2) of the Charter (Belnavis, supra; R. v. Côté 2011 CSC 46, [2011] 3 R.C.S. 215; R. v. Fearon 2014 CSC 77, [2014] 3 R.C.S. 621 at paragraph 96). Similarly, a lack of “exigent circumstances,” where these are the ostensible justification for a warrantless search, will be an indicator of seriousness (R. v. Paterson 2017 SCC 15 at page 47).

Overall, the admissibility of the seized evidence must be determined on a case-by-case basis, even in the case of a serious unjustifiable limit, such as the unlawful entry into a home (Silveira, supra; R. v. Feeney, [1997] 2 S.C.R. 13). The seriousness of the rights limitation, when combined with the effect on the administration of justice of regularly admitting such evidence, can result in the exclusion of independently existing real evidence (Greffe, supra; Kokesch, supra).

(ii) Impact of breach on Charter-protected interests of the accused

The second inquiry requires an evaluation of the extent to which the unjustifiable limit actually undermined the interests protected by the right infringed. The impact of a given Charter limitation may range from fleeting and technical to profoundly intrusive. Generally, “[t]he more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute” (Grant, supra at paragraph 76). To determine the seriousness of the limitation on the accused’s Charter-protected interests, it is necessary to look to the interests engaged by the limited right, and then examine the degree to which the limitation impacted on those interests (Grant, supra at paragraph 77).

For example, an unreasonable search contrary to section 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans their dignity, is more serious than one which does not (Grant, supra, at paragraph 78). Here one should ask whether the evidence could have been obtained without the unjustifiable Charter limitation (R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Dersch, [1993] 3 S.C.R. 768). It should also be recalled here that a “violation of a person’s body is much more serious than that of his office or even of his home” (Pohoretsky, supra at paragraph 5). Physical vulnerability can also be a consideration: where an arrested individual is in need of medical care, the person’s physical condition can contribute to the seriousness of the violation if the police fail to facilitate access to counsel (Taylor, supra, at paragraph 40)

(iii) Society’s interest in an adjudication on the merits

The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion (Grant, supra at paragraph 79). Thus, this inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law” (R. v. Askov, [1990] 2 S.C.R. 1199 at 1219-1220).

A judge on a subsection 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but also the impact of failing to admit the evidence (Grant, supra at paragraph 79; Collins, supra). Further disrepute will result from admitting evidence that has the effect of depriving the accused of a fair hearing, or “from judicial condonation of unacceptable conduct by the investigatorial and prosecutorial agencies”(Collins, supra at paragraph 31). At the same time, disrepute may also result from the exclusion of evidence and this, too, must be considered (Collins, Ibid). Indeed, “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the criminal justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute” (Grant, supra at paragraph 81; see also Strachan, supra at paragraph 52).

However, the concern for truth-seeking is only one consideration under a subsection 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (R. v. Wray, [1971] S.C.R. 272) is inconsistent with the Charter’s affirmation of rights and with the wording of subsection 24(2), which requires a broad inquiry into all the circumstances and not just the reliability of the evidence (Grant, supra at paragraph 80). Similarly, the fact that the evidence obtained in an unjustifiable limit of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must be weighed against factors pointing to exclusion in order to “balance the interests of truth with the integrity of the justice system” (R. v Mann, [2004] 3 S.C.R. 59 at paragraph 57; Grant, supra at paragraph 82). A court must ask “whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial” (R. v Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.) at paragraph 47).

The importance of evidence to a prosecutor’s case is another factor to be considered. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. On the other hand, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy would be detrimental to the prosecution’s case (Grant, supra at paragraph 83).

While the seriousness of the offence at issue may also be a valid consideration under this line of inquiry, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. However, it is the “long-term repute” of the justice system which is the focus of subsection 24(2). Indeed, “the short-term public clamour for a conviction in a particular case must not deafen the subsection 24(2) judge to the longer-term repute of the administration of justice” (Grant, supra at paragraph 84). Further, “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high” (Grant, supra at paragraph 84).

Thus, on the one hand, it may be reasonable to suppose that the more serious the offence in question, the greater the likelihood that the administration of justice will be brought into disrepute by the exclusion of the evidence, particularly where the evidence is crucial to conviction (Plant, supra; R. v. Borden, [1994] 3 S.C.R. 145; Colarusso, supra); on the other hand, if the admission of the evidence would result in an unfair trial in a given case, then the evidence should be excluded even if the offence is serious (Collins, supra; Borden, supra; Burlingham, supra). In other words, the courts should not allow the seriousness of the offence and the reliability of the evidence to overwhelm the subsection 24(2) analysis as, to do so, “would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of justice ‘the ends justify the means’ ” (R. v. Harrison (2008), 89 O.R. (3d) 161 (Ont. C.A.), per Cronk J.A., as adopted in Harrison (SCC), supra at paragraph 40; Cole, supra at paragraph 95). Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences (Harrison (SCC), supra, at paragraph 40).

7.  Application to different kinds of evidence

The patterns which have emerged under subsection 24(2) in respect of particular types of evidence are likely to serve as guides to judges faced with subsection 24(2) applications in future cases (Grant, supra at paragraph 86).

(i) Statements by the accused

Quite apart from subsection 24(2), under the common law confessions rule, where a statement is made to a recognized person in authority, regardless of whether its maker is detained at the time, it is inadmissible unless the Crown can establish beyond a reasonable doubt that it was made voluntarily. “Only if such a statement survives scrutiny under the confessions rule and is found to be voluntary does the subsection 24(2) remedy of exclusion arise” (Grant, supra, at paragraph 90).

With this in mind, while there is no absolute rule excluding Charter-infringing statements under subsection 24(2), it is clear that statements obtained in breach of the Charter are generally excluded by the courts on the ground that admission, on balance, would bring the administration of justice into disrepute (Grant, supra, at paragraph 91). The three lines of inquiry under subsection 24(2) (described above in Part 6) support the general, although not automatic, exclusion of statements obtained in violation of the Charter (Grant, supra at paragraphs 92-95). In particular, a court’s finding that a statement was obtained in an unjustifiable limit of the section 7 principle against self-incrimination will generally include a determination that the reliability of the statement was outweighed by abusive or coercive state conduct, or that it is unreliable. Both of these considerations will call for exclusion (R. v. Hart 2014 CSC 52, [2014] 2 R.C.S. 544 at paragraph 242 per Karakatsanis J. (concurring)).

(ii) Bodily evidence

Bodily evidence refers to evidence taken from the body of the accused, such as DNA evidence and breath samples. The majority in Stillman, supra, applying a very broad definition of conscription, had held that bodily evidence is “conscriptive” and that where such evidence is obtained as a result of an unjustifiable Charter limitation, its admission would affect trial fairness. In reaching this conclusion, the majority noted that the security of the body should be recognized as being just as worthy of protection from state intrusion aimed at compelled self-incrimination as are statements. As such, evidence obtained by means of a significant compelled bodily intrusion without consent or statutory authorization was considered, as a general rule, to adversely affect the fairness of the trial (Stillman, supra at paragraph 93). This resulted in a near-automatic exclusionary rule for bodily evidence which was obtained in a manner contrary to the Charter (Grant, supra at paragraph 100).

Stillman provided a simple method by which trial judges could approach the trial fairness factor from Collins, supra. It was also consistent with a line of cases finding that the use of any evidence that could not have been obtained “but for” the participation of the accused in the construction of the evidence tends to render the trial unfair (R. v. Ross, [1989] 1 S.C.R. 3:line-up; Therens, supra: breathalyser; R. v. Brydges, [1990] 1 S.C.R. 190; Black, supra; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Broyles, [1991] 3 S.C.R. 595; Evans (1991), supra; R. v. Babinski, [1992] 3 S.C.R. 467: confession).

In Grant, supra, such an approach was specifically rejected in favour of a more “flexible, multi-factored approach” which considers “all the circumstances”, as required by the wording of subsection 24(2): Grant, supra at paragraphs 103-107; R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Dolynchuk, (2004), 184 C.C.C. (3d) 214 (Man. C.A.); R. v. Banman, (2008), 236 C.C.C. (3d) 547 (Man. C.A.); R. v. S.A.B., [2003] 2 S.C.R. 678. Here, just as with respect to other types of evidence, admissibility should be determined by inquiring into the effect admission may have on the repute of the justice system, having regard to the seriousness of the police conduct, the impact of the Charter limitation on the protected interests of the accused, and the value of a trial on its merits (Grant, supra at paragraph 107).

While each case must necessarily be considered on its own facts, it would now seem that generally “when an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted.” (e.g., a breath sample, where the method of collection is relatively non-intrusive) (Grant, supra at paragraph 110; see also generally paragraphs 11, 109-111).

(iii) Non-bodily physical evidence

With respect to non-bodily physical evidence, the degree to which the first inquiry (seriousness of Charter-infringing state conduct) militates in favour of exclusion will depend on the extent to which the conduct is deliberate or egregious. As to the second inquiry (impact of breach on Charter-protected interests of the accused), the question is how seriously the limitation impacted on the accused’s interests. The fact that evidence obtained through an invasive search is not itself a bodily sample cannot be seen to diminish the seriousness of the intrusion (Grant, supra at paragraph 114; Simmons, supra at paragraphs 516-517; R. v. Golden, [2001] 3 S.C.R. 679). The third factor (society’s interest in adjudication on the merits) will generally favour admission since reliability issues with physical evidence will not generally be related to the limitation (Grant, supra at paragraphs 112-115).

(iv) Derivative evidence

Derivative evidence is evidence indirectly obtained as a result of a Charter limit. It does not include the evidence directly obtained through an unjustifiable Charter limit, but rather that which is obtained “as a consequence” of the directly tainted evidence (Feeney, supra).

“Derivative evidence” is a subset of conscriptive evidence (Stillman, supra at paragraph 99). More particularly, it is essentially conscriptive “real” evidence. It involves an unjustifiable Charter limit whereby the accused is conscripted against himself (usually in the form of an inculpatory statement) which then leads to the discovery of an item of real evidence. In other words, the unlawfully conscripted statement of the accused is the necessary cause of the discovery of the real evidence (Stillman, supra).

As noted above, prior to Grant, supra, if the evidence under consideration was classified as conscriptive, that is to say self-incriminating, it was necessary to proceed to the second step of the Collins analysis and determine whether the admission of the evidence would render the trial unfair. Since derivative evidence is a subset of conscriptive evidence, the same approach was generally taken in this context. Where it could be said that the trial’s fairness would be affected by admission of such derivative evidence, the evidence was generally to be excluded, although this was not to be an automatic exclusion, and the other factors (seriousness of the violation and the effect of exclusion) were still to be assessed by a court as part of the analysis (Stillman, supra; R. v. S.(R.J.), [1995] 1 S.C.R. 451).

Generally, prior to Grant, supra, the admission of such conscriptive evidence was not seen as rendering the trial unfair where the impugned evidence would have been discovered in the absence of the unlawful conscription of the accused. There were two principal bases upon which the Crown could establish “discoverability”: (1) where an independent source of the evidence existed; (2) where the discovery of the evidence was inevitable This was subject to considerations around the seriousness of the Charter limitation (Stillman, supra).

As discussed above, this approach to the exclusion of evidence under subsection 24(2) has now been rejected by the Supreme Court. According to the majority in Grant, the rules on derivative evidence and discoverability were developed under the Collins “trial fairness” rationale, and gave effect to the insight that if evidence would have been discovered in any event, the accused’s conscription did not truly cause the evidence to become available. The majority in Grant, supra also noted, with concern, that this “discoverability doctrine” had acquired even greater importance under Stillman, where the category of conscriptive evidence was considerably enlarged. The majority went on to note that since this underlying rationale of “trial fairness” should no longer hold, and since “trial fairness” in the Collins/Stillman sense is no longer a determinative criterion for the subsection 24(2) inquiry, discoverability should likewise not be determinative of admissibility (Grant, supra at paragraph 121).

However, it must be noted that discoverability still retains a useful role in assessing the actual impact of the breach on the protected interests of the accused since it allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused’s underlying interest against self-incrimination. Conversely, in cases where it cannot be determined with any confidence whether evidence would have been discovered in the absence of the statement, discoverability will have no impact on the subsection 24(2) inquiry (Grant, supra, at paragraph 122).

According to the Supreme Court, under the new formulation of the subsection 24(2) test, where reliable evidence is discovered as a result of a good faith limitation that did not greatly undermine the accused’s protected interests, a trial judge may conclude it should be admitted. However, deliberate and egregious police conduct that severely impacts an accused’s protected interests may result in exclusion, notwithstanding that the evidence may be reliable (Grant, supra, at paragraphs 116-127).

8. Review

Provincial appellate courts should not readily interfere with the decisions of trial judges with respect to the application of subsection 24(2). The test under 24(2) is a “flexible and imprecise balancing exercise” and the question is therefore whether the trial judge considered the right factors (Mian, supra at paragraph 88). Indeed, in Grant, supra the majority of the Supreme Court noted that where the trial judge has considered the proper factors under subsection 24(2), appellate courts should accord “considerable deference” to his or her ultimate determination (Grant, supra at paragraph 86; R. v. Loewen, 2011 SCC 21, at paragraph 13; Côté, supra at paragraph 44). In particular, the determination of whether extenuating circumstances justified police conduct (Mian, supra) and whether evidence was “obtained in a manner” that unjustifiably limited Charter rights (R. v. Mack 2014 CSC 58, [2014] 3 R.C.S. 3) are fact-driven determinations that are entitled to deference. Thus, it would still seem to be the case that unless the trial judge makes an unreasonable finding of fact or legal error in applying subsection 24(2), the issue should not be reopened (Mellenthin, supra; Grant, supra; R. v. Goncalves, [1993] 2 S.C.R. 3). It follows, of course, that an appellate court may reverse a trial judge who has erred as to the applicable legal principles, (R. v. Duguay, [1989] 1 S.C.R. 93; Silveira, supra; Stillman, supra) or where the findings of fact of the trial judge are unreasonable (Belnavis, supra).