Exclusion and Other Remedies for Unreasonable Search or Seizure

• Author: Robert Diab/Chris D.L. Hunt
• Profession: Professor in the Faculty of Law at Thompson Rivers University/Professor in the Faculty of Law at Thompson Rivers University
• Pages: 328-351

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C H A P T E R 9

EXCLUSION AND OTHER REMEDIES FOR UNREASONABLE SEARCH OR SEIZURE

A. INTRODUCTION

The Charter allows for a number of remedies in response to a inding that a search or seizure, or a law authorizing one, is unreasonable. Where a court inds that a law violates a Charter right, it will turn to section 1 of the Charter to decide whether the violation can be justiied as a “reasonable limit” on the right in a “free and democratic society.”¹The court then applies a proportionality test found in R v Oakes, which, broadly speaking, considers the nature of the state interest in or purpose of the law and the extent to which it impairs the right at issue.²We noted in Chapter 2 that in the case of section 8, this balancing has tended to take place almost exclusively within the assessment of whether a law violates section 8 itself, as part of the assessment of whether a search law is reasonable (the subject of Chapter 7). As a consequence, as Dickson J (as he then was) predicted in Hunter v Southam Inc, there are few Supreme Court cases that go on to consider in much detail whether violations of section 8 can be justiied under section 1 and none that have found a violation of section 8 to be saved under section 1.³The government tends to concede that if a law allows for an unreasonable search or seizure, it

1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 1 [Charter].

2 R v Oakes, [1986] 1 SCR 103.
3 Hunter et al v Southam Inc, [1984] 2 SCR 145 at 169–70; for s 8 cases proceeding to s 1, see Chapter 7.

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cannot be justiied as a reasonable limit. In which case, the law is read

down or struck down.⁴The vast majority of the time that courts ind a search or seizure to be in violation of section 8, they do so in response to an act on the part of police or other state oicials. The court then turns to section 24 of the Charter for a remedy, and in most of these cases, the court turns to section 24(2) to decide whether evidence obtained from the search or seizure should be excluded or admitted at trial.⁵There are, however, other important remedies under section 24(1), which states that “[a]nyone 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.” A court of competent jurisdiction under section 24(1) and (2) includes the superior court of every province and any court or administrative tribunal provided the authority to grant a remedy under the Charter in the legislation constituting that court or tribunal — or where such authority is found to be “essential . . . to the efective and eicient functioning of the court or tribunal.”⁶Remedies under section 24(1) include the power to grant a judicial stay of proceedings, to award monetary damages, to quash a seizure order, or to impose a reduced sentence — though in the normal course, a sentence should be reduced within the court’s discretion on sentencing under the Criminal Code.⁷We deal irst with these less common remedies before turning to exclusion in section 24(2).

A brief note on our aims in this chapter. Remedies are a distinct topic from search and seizure. There are many readily accessible and thorough sources on the topic.⁸We have chosen to include a short chapter on

4 The authority for the remedy of a declaration of invalidity is s 52(1) of the Charter, above note 1.

5 On the relation between ss 24 and 1 of the Charter and s 52 of the Charter, see

R v 974649 Ontario Inc, 2001 SCC 81 [974649 Ontario], noting at para 14: “If a law is inconsistent with the Charter, s. 52 of the Constitution Act, 1982 provides that it is invalid to the extent of the inconsistency. On the other hand, if a government action is inconsistent with the Charter, s. 24 provides remedies for the inconsistency.”
6 974649 Ontario, above note 5 at para 44. A provincial court is a court of competent jurisdiction under s 24, but not in the course of a preliminary inquiry: Mills v The Queen, [1986] 1 SCR 863; R v Rahey, [1987] 1 SCR 588; R v Smith (Michael Harold), [1989] 2 SCR 1120.
7 Criminal Code, RSC, 1985, c C-46 [Criminal Code or Code]; below, we discuss
the Supreme Court’s holding in R v Nasogaluak, 2010 SCC 6 [Nasogaluak] on the exceptional cases in which a sentence reduction should be granted under s 24(1). 8 See, e.g., the extensive treatment on s 24(2) in David Paciocco, Palma Paciocco &

Lee Steusser, The Law of Evidence, 8th ed (Toronto: Irwin Law, 2020).

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remedies to complete the account we have ofered on search and seizure, on the view that a remedy for violating section 8 — exclusion in particular — is an important part of the story. Our aim here is not to provide the encyclopedic survey we have attempted in earlier chapters, but rather to provide a high-level overview of the various remedies and tests that apply, and to assist readers by providing direction for further inquiry.

B. REMEDIES UNDER SECTION 24(1) OF THE CHARTER

1) Judicial Stay

The leading case setting out the test for a judicial stay for the violation of a Charter right, and one that deals with a violation of section 8 itself, is the Supreme Court’s decision in R v Babos.⁹Justice Moldaver, writing the majority in this case, consolidated a number of relevant strands of earlier law on point before airming the applicable test. A judicial stay, as he noted, is “the most drastic remedy” a court can order and is appropriate in only the “clearest of cases” for what amounts to an abuse of process on the part of the state.¹⁰Forms of abuse fall into two categories. The irst is where “state conduct compromises the fairness of an accused’s trial (the ‘main’ category).”¹¹The second is where “state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the ‘residual’ category).” Charter breaches involving unreasonable conduct on the part of police, such as an unreasonable search, fall into the second or “residual” category.¹²The test for a stay under both categories is the same,¹³worth citing in full:

1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para 54);

9 2014 SCC 16 [Babos].
10 Ibid at paras 30–31, citing R v Regan, 2002 SCC 12 at para 53 [Regan] (a “drastic remedy”) and R v O’Connor, [1995] 4 SCR 411 at para 68 [O’Connor] (the “clearest of cases”).
11 Babos, above note 9 at para 31.
12 Ibid at para 35: “when the residual category is invoked, the question is whether the state has engaged in conduct that is ofensive to societal notions of fair play and decency.”
13 Ibid at para 32.

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2) There must be no alternative remedy capable of redressing the prejudice; and

3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a inal decision on the merits” (ibid at para 57).¹⁴Justice Moldaver held that when considering a stay under the residual category, the court must assess whether the state conduct is “so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that ofends society’s sense of fair play and decency.”¹⁵If so, the irst part of the test is met. The Court’s prior holding in Canada (Minister of Citizenship and Immigration) v Tobiass adds an important qualiication to this stage:¹⁶For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will ofend society’s sense of justice. Ordinarily, the latter condition will not be met unless the former is as well — society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be ofensive. But such cases should be relatively very rare.¹⁷

Justice Moldaver airmed the distinction in this passage between past and continuing misconduct, but emphasized that the main question at this stage is “whether proceeding would lend judicial condonation to the impugned conduct.”¹⁸

At the second stage of the test, a court considering a stay under the residual category must recognize that the question is not whether a stay would “provide redress to an accused for a wrong that has been done to

14 Ibid, citing Regan, above note 10. The Supreme Court irst articulated this test in

O’Connor, above note 10 at paras 75–78, deriving it there from Professor (now Justice) David Paciocco, “The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept” (1991) 15 Criminal Law Journal 315 at 341. 15 Babos, above note 9 at para 35.
16 Canada (Minister of Citizenship and Immigration) v Tobiass, [1997] 3 SCR 391

[Tobiass].
17 Ibid at para 91, cited in Babos, above note 9 at para 36. 18 Babos, above note 9 at para 38.

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him or her in the past” but rather “whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.”¹⁹For cases under the...