Exclusion of Evidence Under Section 24(2) of the Charter

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 659-691

659

Exclusion of

Evidence Under

Section 24(2)

ofthe Charter

17

I. “Obtained in a Manner”: A Nexus to the Breach . . . . . . . . . . . . . . . . 661

A. No Causal Connection Required ....................... 661

B. Must the Breach Precede the Discovery of Evidence? ....... 665

II. Bringing the Administration of Justice into Disrepute ............ 668

A. Seriousness of the Breach ............................ 669

B. Impact on the Accused ............................... 679

C. The Truth-Seeking Function of the Criminal Justice System ... 684

D. Balancing of the Three Grant Prongs .................... 686

III. Evidentiary Issues on a Charter Application .................... 687

A. Timing of the Application ............................. 687

B. The Evidentiary Onus ................................ 688

C. Developing the Section 24(2) Record ................... 689

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660Search and Seizure

Violations of section 8 of the Charter entitle the rights holder to seek a meaningful

remedy. Egregious violations of section 8, such as intentionally abusive police con-

duct, may result in a stay of proceedings pursuant to section 24(1) of the Charter.1 In

some circumstances, the accused can also seek exclusion of evidence under section

24(1).2 Most often, however, where an accused person has established a violation of

section 8 of the Charter, the remedy sought is the exclusion of unconstitutionally

obtained evidence, pursuant to section 24(2).

Section 24(2) of the Charter provides as follows:

Where, in proceedings under section (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.

There are thus three criteria for excluding evidence under section 24(2):

1. a right or freedom guaranteed by the Charter has been infringed or denied;

2. evidence was “obtained in a manner” that infringed or denied a Charter right;

and

3. the admission of that evidence would bring the administration of justice into

disrepute.

The preceding chapters addressed the first criterion—namely, the litany of ways in

which the state can violate section 8 of the Charter. This chapter focuses on the sec-

ond and third prongs. One must always remember that when section 24(2) is engaged,

the court has already found a breach of the Charter. The analysis under section 24(2)

therefore focuses on whether the state should be permitted to rely on the fruits of its

unconstitutional conduct.

As set forth in greater detail below, these two prongs of section 24(2) require that

the applicant surmount two evidentiary hurdles. First, they must establish that the

impugned evidence was obtained in a manner that violated their Charter rights. To

satisfy this requirement, there must be a nexus between the Charter violation and the

evidence that the applicant seeks to exclude.3

Second, they must show that admission of the evidence would bring the administration

of justice into disrepute, bearing in mind the three factors set out by the Supreme Court

1 See R v Paterson, 2017 SCC 15 at para 22.

2 See R v Hart, 2014 SCC 52 at para 117; R v Bjelland, 2009 SCC 38 at para 24; see also R v

Hape, 2007 SCC 26; R v Harrer, [1995] 3 SCR 562, 1995 CanLII 70; Canada (Justice) v Khadr,

2008 SCC 28.

3 See R v Wittwer, 2008 SCC 33 at para 19.

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Chapter 17 Exclusion of Evidence Under Section 24(2) ofthe Charter 661

of Canada in R v Grant:4 the seriousness of the breach, the impact on the accused’s

Charter rights, and society’s interest in adjudication of the trial on the merits.

I. “Obtained in a Manner”: A Nexus to the Breach

Courts sometimes elide the “obtained in a manner” requirement where the connec-

tion between the Charter violation and obtaining of the evidence is apparent, but it is

a necessary prerequisite for exclusion under section 24(2).

A. No Causal Connection Required

The “obtained in a manner” criterion requires that the Charter breach is connected

to the evidence obtained. It does not require, however, that the evidence be causally

connected to the breach. Since its decision in R v Strachan,5 the Supreme Court of

Canada has consistently held that section 24(2)’s “obtained in a manner” threshold

requirement does not require proof of causation. In other words, the applicant need

not show that the discovery of the impugned evidence resulted from the Charter

breach. Instead, the nexus between the breach and the evidence can be temporal, con-

textual, or causal or a combination thereof.6 Trial judges should consider the entirety

of the transaction to determine if a sucient nexus exists between a Charter breach and

the impugned evidence.

In Strachan, the Supreme Court of Canada specifically rejected a causal require-

ment, holding that such a requirement was neither principled nor practical:

In my view, reading the phrase “obtained in a manner” as imposing a causation require-

ment creates a host of diculties. A strict causal nexus would place the courts in the

position of having to speculate whether the evidence would have been discovered had

the Charter violation not occurred. Speculation on what might have happened is a highly

artificial task. Isolating the events that caused the evidence to be discovered from those

that did not is an exercise in sophistry. Events are complex and dynamic. It will never be

possible to state with certainty what would have taken place had a Charter violation not

occurred. Speculation of this sort is not, in my view, an appropriate inquiry for the courts.7

The Court further explained that a contextual approach was required—one that con-

sidered causation but did not require it:

In my view, all of the pitfalls of causation may be avoided by adopting an approach that

focuses on the entire chain of events during which the Charter violation occurred and

4 2009 SCC 32 at para 71.

5 [1988] 2 SCR 980, 1988 CanLII 25 at para 46.

6 Wittwer, supra note 3 at para 21.

7 Supra note 5 at para 39.

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