Exclusion of Evidence

• Author: Matthew Asma/Matthew Gourlay
• Pages: 29-73

29

Exclusion of

Evidence

2

I. Introduction .............................................

II. Key Concepts in This Chapter ............................... 

A. Exclusion Under Section () ......................... 

B. Exclusion Under Section () ......................... 

III. Section (): Evidence Obtained in a Manner That Violated

the Claimant’s Charter Rights ............................... 

A. Obtained in a Manner That Violates the Charter ........... 

B. Bringing the Administration of Justice into Disrepute ....... 

C. Types of Evidence .................................... 

D. Issues of Proof ...................................... 

E. Revisiting Exclusion Rulings at Trial ..................... 

IV. Section (): Evidence Not Obtained Through a Charter

Breach .................................................. 

A. Late Disclosure ..................................... 

B. Lost Evidence ....................................... 

C. Extraterritorial Acquisition of Evidence ................... 

D. Statutory Compulsion ................................ 

E. Other Ocial Misconduct ............................. 

© 2023 Emond Montgomery Publications. All Rights Reserved.

30Charter Remedies in Criminal Cases

I. Introduction

In criminal litigation, orders excluding prosecution evidence are the most commonly

sought remedies for violations of Charter rights. There are actually two ways to seek

exclusion of evidence for a proven Charter violation1—pursuant to section 24(1) or

24(2). Both are discussed in this chapter.

When evidence sought to be adduced by the prosecution is alleged to have been

obtained in a manner that violates the accused’s Charter rights, then the application

to exclude must be decided under section 24(2).2 The meaning of “obtained in a man-

ner” requires elaboration; this threshold issue is addressed in SectionIII.A, below.

The words “shall be excluded” in section 24(2) might suggest that exclusion

is mandatory upon proof the evidence was obtained in a manner that violated the

accused’s Charter rights; however, in reality the opposite is true. Exclusion follows

only if the applicant succeeds in proving that admission of the evidence would bring

the administration of justice into disrepute. To make such a finding requires consider-

ation by the court of “all the circumstances” through application of the revised legal

test laid down by the Supreme Court of Canada in 2009 in R v Grant.3 The legal analy-

sis mandated by Grant aords a broad scope for the exercise of judicial discretion in

three dierent respects. First, the application judge must make factual findings in

relation to the claims alleged by the applicant. Second, the judge must weigh three dif-

ferent factors that are meant to encompass the relevant individual and societal inter-

ests. Third, and finally, the judge must balance those factors and arrive at a conclusion

1 Both ss 24(1) and 24(2) are remedial provisions, not free-standing rights: R v Terry, [1996] 2

SCR 207 at para 23, 1996 CanLII 199. The analysis of remedy begins only after the applicant

has proved a violation of one or more rights protected by the Charter: see e.g. R v Anderson,

2003 SKCA 27 at para3.

2 R v Therens, [1985] 1 SCR 613, 1985 CanLII 29; R v Strachan, [1988] 2 SCR 980 at 1000, 1988

CanLII 25.

3 2009 SCC 32.

Box 2.1 Charter, Section 24

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

have been infringed or denied may apply to a court of competent jurisdic-

tion to obtain such remedy as the court considers appropriate and just in

the circumstances.

(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.

© 2023 Emond Montgomery Publications. All Rights Reserved.

Chapter  Exclusion of Evidence 31

about whether the admission or the exclusion of the evidence would better serve the

long-term reputation of the administration of justice in the eyes of informed members

of the public. Appellate review of all these decisions is deferential to the application

judge unless the appellant can demonstrate legal error in the judge’s approach. These

steps are addressed in SectionIII.B, below. In the end, the exclusion of evidence is far

from automatic after a Charter violation is established.

When evidence is sought to be excluded for reasons other than how it was obtained,

section 24(1) is the governing remedial provision. As with section 24(2), the applica-

tion of section 24(1) also ends up being highly discretionary. Exclusion of evidence as

a section 24(1) remedy is addressed in SectionIV, below.

Note that Charter remedies other than exclusion of evidence are also possible

under section 24(1). These remedies include a stay of the proceedings (Chapter3);

reduction of the accused’s sentence, if convicted (Chapter 4); an award of costs

against the Crown (Chapter5); and assorted procedural remedies, including the

admission of otherwise inadmissible defence evidence (Chapter8). An award of dam-

ages for a Charter breach can also be granted, although this is not properly a criminal

court remedy and requires a separate civil action (Chapter8).

II. Key Concepts in This Chapter

A. Exclusion Under Section 24(2)

• When the Charter breach relates to the state’s acquisition of the evidence

sought to be excluded, exclusion must be sought pursuant to section 24(2).

• “Obtained in a manner”: Before evidence can be considered for exclusion

under section 24(2), the applicant must prove the evidence was obtained in a

manner that violated the Charter—meaning that the evidence and the Charter

violation were somehow connected, whether causally, temporally, or otherwise

contextually, and that the connection was not too remote.

• “Bring the administration of justice into disrepute”: To obtain an order excluding

evidence, the applicant must prove that, after considering, weighing, and balanc-

ing the three Grant factors, the admission of the evidence would be more harmful

to the long-term repute of administration of justice than would its exclusion.

• The three Grant factors that must be considered are:

1. the seriousness of the Charter-violating state conduct—including the inten-

tions of the state actor who committed the violation (whether they were

good-faith, negligent, or bad-faith intentions) and any evidence of a pattern

or accumulation of violations;

2. the impact of the Charter violation on the interests of the claimant—which

requires identifying what interests are aected and then considering how

the Charter violation aected those interests, with particular emphasis

on whether the violation caused the discovery of the evidence; and

© 2023 Emond Montgomery Publications. All Rights Reserved.