Charter Remedies: Section 24(2)

• Author: Karen Jokinen/Peter Keen
• Pages: 515-530

515

Charter

Remedies:

Section

24(2)

25

Section 24 of the Charter of Rights and Freedoms .................. 516

I. Introduction ............................................. 516

II. The Basic Principles ....................................... 516

A. Burden of Persuasion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516

B. Obtained in a Manner ................................ 517

C. Breaking the Chain: Fresh Start Principle ................. 519

D. Discoverability ...................................... 523

III. The Focus of Section 24(2) ................................. 523

A. The Grant Analysis .................................. 523

B. Section 24(2) Analysis in Criminal Code Operation Cases ... 526

C. Multiple Breaches ................................... 528

IV. Conclusion .............................................. 530

© 2023 Emond Montgomery Publications. All Rights Reserved.

516Impaired Driving and Other Criminal Code Driving Oences

Section 24 of the Charter of Rights and Freedoms

Enforcement of guaranteed rights and freedoms

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been

infringed or denied may apply to a court of competent jurisdiction to obtain such remedy

as the court considers appropriate and just in the circumstances.

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.

I. Introduction

In drinking/drugged operation cases, both sections 24(1) and (2) can be used as rem-

edies for Charter breaches. It is not enough to establish one or more Charter breaches.

The goal of the defence is to exclude the Charter-infringing evidence from the trial

proper. This chapter concentrates on section 24(2), the remedy resorted to most fre-

quently in these cases.

Section 24(2) of the Charterrequires courts to exclude evidence that has been

obtained by the police in a manner that infringed or denied a Charterright of freedom,

if admitting the evidence would bring the administration of justice into disrepute. The

question is not should the evidence be excluded; the question is would the administration

of justice be brought into disrepute by its admission?1 The Supreme Court has described

section 24(2) as containing two components: a threshold component, which asks whether

the evidence was “obtained in a manner” that infringed a Charter right; and an evalua-

tive component, which asks whether, having regard to all the circumstances, admitting the

evidence would bring the administration of justice into disrepute.2

II. The Basic Principles

A. Burden of Persuasion

The Supreme Court of Canada in R v Bartle3 ruled that the burden of establishing that

evidence should be excluded under section 24(2) lies with the accused on a balance

of probabilities. The accused must establish that admitting the evidence would bring

the administration of justice into disrepute. Although the ultimate burden is on the

accused, the Court described this as a burden of persuasion. A number of matters,

1 R v McGue, 2016 ONCA 365 at para 59.

2 R v Beaver, 2022 SCC 54 at para 94.

3 R v Bartle, [1994] 3 SCR 173, [1994] SCJ No 74 (QL) at paras 49-50.

© 2023 Emond Montgomery Publications. All Rights Reserved.