Where evidence has been obtained in a manner that violates the Charter, a court will exclude it if (1) the breach is serious enough and (2) the impact on the Charter-protected interests of the accused is significant enough to (3) outweigh society’s interest in the adjudication of the case on its merits. In conducting this balancing exercise, the court is to assess each of these three factors to determine whether a reasonable person, fully informed of the all of the circumstances and the values underlying the Charter, would conclude that the admission of the evidence could bring the administration of justice into disrepute. When asking this question, the focus is on the damage that condoning the Charter violation by accepting its fruits for admission could do to the long-term interest in maintaining the integrity and public confidence in the justice system.
The Court in R. v. Grant held that where the accused applies to exclude evidence that has been "obtained in a manner" that violates the Charter, courts must gauge (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the Charter breach on the Charter-protected
interests of the accused, and (3) society’s interest in the adjudication of the case on its merits.57"The evidence on each [of these three] line[s] of inquiry must [then] be weighed in the balance"58by the trial judge59to determine whether a reasonable person, fully informed of all of the circumstances and the values underlying the Charter, would conclude that the admission of the evidence would60bring the administration of justice into disrepute," based not on "the immediate reaction to the individual case," but given the "long-term" interest in "maintaining the integrity of, and public confidence in, the justice system."61This requires courts to look beyond the immediate case at the broader implications. For example, in R. v. Payette62the Crown urged that evidence secured by an unconstitutional sniffer-dog search of an automobile should be admitted because the search was transitory and the contraband detected was reliable. The court recognized that these factors pertain in all sniffer-dog automobile searches. If given too much weight they would lead to the routine admission of such evidence, thereby harming the repute of the administration of justice.
As the Supreme Court of Canada recognized in R. v. Harrison, this "balancing exercise" is "a qualitative one, not capable of mathematical precision."63It is not a simple question of counting whether there are more "pro-exclusionary" than "pro-inclusionary" factors.64Although technically section 24(2) obliges judges to exclude the evidence in any case where its admission could bring the administration of justice into disrepute (the section says that the evidence "shall be excluded") the imprecision inherent in determining the impact of admission on the repute of the administration of justice requires trial judges to exercise discretion or judgment. As a result, "[p]rovided the judge has considered
the correct factors considerable deference should be accorded to [the trial judge’s] decision."65Where, however, the trial judge "has fallen into error in principle, a material misapprehension of the evidence relevant to the ruling [has occurred] or a clearly unreasonable conclusion [has been arrived at]," the appellate court may "perform the s. 24(2) calculation afresh and determine the admissibility of the evidence."66
As indicated above, in R. v. Harrison the trial judge "placed undue emphasis on the third line of inquiry" and inappropriately converted the inquiry into "a simple contest between the degree of police misconduct and the seriousness of the offence."67This is what freed the appellate court, the Supreme Court of Canada, to conduct its own evaluation of whether section 24(2) required exclusion.
The Grant test applies to all kinds of evidence and regardless of the Charter breach. As indicated in the introduction to this chapter,68prior to Grant the law was otherwise. Courts, applying the "Collins/Stillman framework"69before Grant ultimately rejected it, took a markedly different approach to whether admission would bring the administration of justice into disrepute, depending on the kind of evidence at issue. In effect, evidence would notionally be put into one of two "boxes," depending upon whether it was "compelled conscriptive" evidence or not. Compelled conscriptive evidence would go into Box 1 and would be excluded unless the Crown could prove that the evidence would have been discovered without breaching the Charter. No consideration would be given to how serious the breach was or how much damage exclusion would do to the reputation of the administration of justice. By contrast, non-compelled or non-conscriptive evidence would fall into Box 2 and be excluded only if, given the seriousness of the violation, more harm would be done to the repute of the administration of justice by admission than by exclusion.
This now obsolete "two-box" approach had been built on a "fair trial" theory that borrowed heavily from self-incrimination concepts. The Supreme Court of Canada reasoned in the Collins/Stillman line of cases that since a "fair trial" demands that the Crown prove its case without calling the accused as a witness, a trial would become unfair if the Crown could
indirectly co-opt the accused as a witness by presenting out-of-court statements obtained from the accused in violation of the Charter. Since it will always damage the repute of the administration of justice to conduct unfair trials, such evidence would almost automatically be excluded. In time, this thinking expanded beyond "testimonial self-incrimination" (incrimination through the use of statements made by the accused) to include other forms of "conscripting" the accused to participate in the investigation against him. It came to be held that a trial would be rendered unfair by admitting samples taken unconstitutionally from the body of the accused; or by compelling the accused to act (to use his body) to create evidence, such as by participating in identification lineups or doing re-enactments; or by using evidence derived from other conscriptive evidence, such as the gun found after the accused describes its location to the police in an unconstitutionally obtained statement. It was only when the Crown could prove "discoverability" (i.e., that the constitutionally obtained compelled conscriptive evidence would have been discovered even without the Charter breach) that the admission of these kinds of evidence would not render a trial unfair.
The July 2009 decision in R. v. Grant made the "two-box," Collins/ Stillman framework obsolete by rejecting the fair trial theory upon which it was based. The Court reasoned that this fair trial theory is inconsistent with the fair trial concept used more generally in the law, which is a "multi-faceted and contextual concept," meant to "satisfy the public interest in getting at the truth, while preserving basic procedural fairness to the accused."70Moreover, the near-automatic exclusion of compelled conscriptive evidence was irreconcilable with section 24(2)’s command to judge the impact of admission on the repute of the administration of justice by "having regard to all the circumstances."71
Finally, it produced anomalous results.72It was more apt to cause the exclusion of a plucked hair than real evidence secured from a demeaning and objectionable body cavity or strip search.73Care must therefore be exercised in relying on pre-Grant case law, as a number of its practices have now been rejected. The Grant court not only abolished the "two-box" approach and jettisoned the Collins/ Stillman fair- trial theory, the Court has also:
· rejected the equation of self-incrimination and other conscriptive evidence;
· reduced the role "discoverability" plays; and
· marginalized the reliance that can be placed on the seriousness of the offence as a relevant factor in section 24(2) reasoning.
These changes will be discussed as they arise for consideration in the detailed description of the Grant framework that follows.
The seriousness of the breach - Gauging the seriousness of the Charter-infringing state conduct involves assessing the blameworthiness of the conduct. This focuses most intently on the state of mind of the officer about Charter compliance, but extends to include systemic or institutional failures in Charter compliance. Moreover, the Charter-infringing state conduct will be more serious where it is part of a larger pattern of Charter violations committed during the investigation of the accused.
This "first line of inquiry"74under the Grant test of gauging the seriousness of the Charter-infringing state conduct is undertaken to determine how important...