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Canadian Criminal Procedure and Practice/Exclusion of Evidence

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General Principles

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Where there has been a finding of a breach of any right under the Charter, the applicant may apply to have evidence excluded from the trial under s. 24(2) of the Charter which states:

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.


The Supreme Court of Canada made a complete revision of the analytical approach in R. v. Grant, 2009 SCC 32[1]. Under Grant, there are "three avenues of inquiry" that a court must consider:[2]

“

...when faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),
(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute...

”

In balancing these factors, the judge should consider all the circumstances of the case.[3]

This analysis should focus on the "long-term, prospective and societal" effect of the violations.[4]

The analysis should be from an objective view and ask "whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute"[5]

There is no rule requiring the automatic exclusion of a statement obtained by Charter violations.[6]

A appellate court should give a discretionary decision of a judge, such as in a 24(2) analysis, high deference. The judge should only interfere where "the judge did not give weight to all relevant considerations". [7]

  1. ↑ R. v. Grant, 2009 SCC 32
  2. ↑ R v Grant per McLachlin, C.J. and Charron, J., at para. 71
  3. ↑ See R. v. Morelli, 2010 SCC 8 (CanLII), [2010] 1 S.C.R. 253
    R. v. Côté, 2011 SCC 46 (CanLII), [2011] 3 S.C.R. 215, at para. 45-48
  4. ↑ see R. v. Mahmood, 2011 ONCA 693 (CanLII)
    R. v. Dhillon, [2012] B.C.J. No. 1158 (C.A.), at para 78
    Grant at para. 69 and 70
  5. ↑ Grant at para. 68
  6. ↑ R. v. N.Y., 2012 ONCA 745 (CanLII) at para. 56, 57
  7. ↑ R. v. Bacon, 2012 BCCA 323 at para. 14

Seriousness of police misconduct

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This factor considers the effect of the police misconduct on the reputation of the justice system. Effectively, considering whether the courts are "condoning" the deviation from the rule of law by failing to disassociate themselves from the fruits of the misconduct.[1]

However, an over-readiness to exclude for "fleeting and technical violation[s]" is likely "to be seen as symptom of systemic impotency which would breed public contempt for the criminal justice system"[2]

Factors the court must consider include:[3]

  • Was the breach “inadvertent or minor” or a result of willful or reckless or deliberate disregard for the Charter?
  • Did the police act in good faith?
  • Were there “extenuating circumstances”?

The gravity of the conduct depends on the degree of intention of the officer, ranging from inadvertent or minor violations to wilful or reckless disregard for Charter rights.[4]

Flagrant disregard of Charter right are to be treated differently than breaches arising out of conduct that is in accordance with the law.[5]

The Court should consider "what the police did and their attitude when they did it".[6]

The presence of ignored lesser intrusive options to chosen the method of investigation will have an aggravating effect on the seriousness of the Charter breach.[7]

A "cavalier" attitude to the use of police powers will also aggravate the breach.[8]

Whether the conduct was an isolated incident or part of a larger pattern of police disregard of Charter rights will affect the seriousness of the breach.[9] This can usually come out through voir dire evidence of whether the officer was acting on an established practice.

The seriousness can be mitigated by factors such as "good faith" on the part of the officer or extenuating circumstances that may warrant quick action to avoid losing evidence.[10]

Good faith, if established, will favour admission because it will "reduce the need for the court to disassociate itself from police conduct".[11]

The presence of reasonable and probable grounds for the police conduct will lessen the seriousness of the violation.[12]

Entry into a residence with an invalid warrant or without any warrant is considered a serious violation of the accused's rights and tends to lean towards exclusion.[13]

  1. ↑ R. v. Ngai, [2010] A.J. No. 96 (C.A.), ("court's first stage of inquiry requires it to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by failing to disassociate themselves from the fruit of that unlawful conduct." )
  2. ↑ see R. v. Shinkewski, [2012] S.J. No. 376 (C.A.), at para 33
    R. v. Giulioni, [2011] N.J. No. 322 (S.C.)
    R. v. Hart, 2012 NLCA 61
  3. ↑ R. v. Loewen 2010 ABCA 255 at para. 83
  4. ↑ R. v. Grant at para. 74
  5. ↑ see R. v. Beaulieu, 2010 SCC 7 (CanLII), [2010] 1 S.C.R. 248
    R. v. Loewen, [2011] S.C.J. No. 100)
  6. ↑ see R. v. Ramage, 2010 ONCA 488 (CanLII), at para 48
  7. ↑ R v Brown, 2012 ONCA 225 (CanLII)
  8. ↑ R v Brown, 2012 ONCA 225 (CanLII)
  9. ↑ R. v. Greffe, 1990 CanLII 143 (SCC), [1990] 1 S.C.R. 755, at para. 50
  10. ↑ R. v. Silveira, 1995 CanLII 89 (S.C.C.), [1995] 2 S.C.R. 297
  11. ↑ R. v. Grant, at para. 75
  12. ↑ R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51
    R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341
  13. ↑ R. v. Maton, 2005 BCSC 330 (CanLII) at para. 56-64

Impact on personal interests

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The impact on the personal interests is a two part inquiry. First, the interest engaged must identified, and then the degree to which the violation impacted this interest must be considered.

The impact can range from fleeting and technical to profoundly intrusive.[1]

Being stopped and searched without justification impacts liberty and privacy in more than a trivial manner. [2]

Stopping a vehicle creates a lesser impact on personal interests than a search of a residence.[3]

The older test under Collins placed emphasis on the discoverability of the evidence, inquiring whether the evidence would have been otherwise discovered during the investigation. Under the new model, the discoverability is still relevant to the first two branches of the analysis but less crucial to the analysis.[4]

In the context of an roadside screening demand, it has been said that only the breaching event is to be considered in determining the impact on personal interests. The judge should not consider the events that follow including the subsequent arrest, personal consequences, or employment consequences.[5]

The "more likely that the evidence would have been obtained even without [the impugned statement of the accused] the lesser the impact of the breach on the accused’s underlying interest against self-incrimination".[6]

  1. ↑ R v Grant, supra
  2. ↑ R v Harrison, 2009 SCC 34 at para. 31 "being stopped and subjected to a search by the police without justification impacts on the motorist's rightful expectation of liberty and privacy in a way that is much more than trivial.”)
  3. ↑ see R. v. Bacon, [2012] B.C.J. No. 1571 (C.A.), at para 34
    R. v. Loewen, [2011] S.C.J. No. 100, at para 12 and 13
    R v Harrison, [2009] 2 S.C.R. 494 at para 31
  4. ↑ R. v. Côté, [2011] S.C.J. 46 at 70
  5. ↑ R v. Booth, 2010 ABQB 797
  6. ↑ R. v. Grant, 2009 SCC 32 at 122

Interest in Trying Case on Merits

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The third step considers the "truth-seeking function" of the trial process.[1]It is presumed that society has an interest in adjudicating matters on the merits. A balance must be made between the effect of its exclusion to the effect of its inclusion.

The "reliability" of the evidence is an important inquiry. If the breach brings the reliability into question it will favour exclusion.[2]

The importance of the evidence on the Crown's case is also important. [3] Where the exclusion would effectively "gut" the case, it will be a factor in favour of admission.[4]

The seriousness of the offence has some importance,[5] but can "cut both ways".[6] The importance of the short-term desire to convict for serious offences is balanced against the need for fair conduct where the penalty is so great.

There will be cases where the seriousness of the offence is considered "neutral".[7]

  1. ↑ R v Grant
  2. ↑ R. v. Grant at para. 83
    R. v. Atkinson, [2012] O.J. No. 2520 (C.A.), at para 93
  3. ↑ R. v. Grant at para. 83
  4. ↑ see R. v. MacDonald, [2012] O.J. No. 3210 (C.A.), at para 37
  5. ↑ R. v. Reddy, 2010 BCCA 11 (CanLII), at para 94
    R. v. Stevens, 2011 ONCA 504 (CanLII), at para 62
  6. ↑ R. v. Grant at para. 84
  7. ↑ see R. v. Martin, [2010] N.B.J. No. 198 (C.A.), at para 96

Interests for specific offences

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Motor Vehicle Offences

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Cases have addressed society's interest screening of impaired drivers to reduce the carnage on our highways prefers the inclusion of evidence.[1]

The ASD procedure has been described as a "non-invasive" and "does not undermine bodily integrity or dignity".[2]

  1. ↑ see R. v. Elias; R. v. Orbanski 2005 SCC 37, (2005), 196 C.C.C. (3d) 481 (S.C.C.) at paras. 3, 24-27; 49; 55 and 58
  2. ↑ R. v. Vandenberg 2010 ABQB 261

Weapons Offences

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In consideration under s.24(2) of the Charter, courts have commented on the public interest with respect to gun cases:[1]

Offences involving handguns is a “serious and growing societal danger”.[2] There is a strong emphasis on the need to denounce and deter the use of firearms in public places.[3] There has been judicial notice that as of 2007 there has been a national increase in gun violence and gun-related offences.[4]

It has been said that "the exclusion of firearms would more negatively impact the administration of justice than their admission."[5]

  1. ↑ See R v Campbell [2009] OJ 4132
  2. ↑ R v Clayton 2005 CaLII 16569 (ONCA) at 41
  3. ↑ R v Danvers [2005] OJ 3532 ONCA at 77
    R. v. Bellamy,2008 CanLII 26259 (ON SC), [2008] 175 C.R.R. (2d) 241, at para. 76
    R. v. Brown, [2006] O.J. No. 4681 (Ont. S.C.J.) at para. 9
  4. ↑ R v. Clayton 2007 SCC 32 at 110
  5. ↑ R. v. Mpamugo, [2009] O.J. No. 953 (S.C.), at para. 48
    R v Harrison, 2009 SCC 34 at 82

Pre-Grant Analysis

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Collins/Stillman Analysis

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Under the Collins test, the administration of justice is brought into "disrepute" where a combination of three factors weight in favour of exclusion of evidence. These sets of factors consist of:[1]

  1. factors affecting the fairness of the trial,
  2. factors relevant to the seriousness of the violation; and
  3. factors relevant to the effect of excluding the evidence.

The Stillman test considers the first set of factors. It examines the nature of the evidence and alternatives to its discovery.[2] The Stillman test directs the following analysis:

  1. Classify the evidence as conscriptive or non-conscriptive based on the manner in which the evidence was obtained. If the evidence is non-conscriptive, its admission will not render the trial unfair and the Court will proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of justice.
  2. If the evidence is conscriptive and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative non-conscriptive means, then its admission will render the trial unfair. The Court, as a general rule, will exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice. This must be the result since an unfair trial would necessarily bring the administration of justice into disrepute.
  3. If the evidence is found to be conscriptive and the Crown demonstrates on a balance of probabilities that it would have been discovered by alternative non-conscriptive means, then its admission will generally not render the trial unfair. However, the seriousness of the Charter breach and the effect of exclusion on the repute of the administration of justice will have to be considered.
  1. ↑ R. v. Collins [1987] 1 S.C.R. 265
  2. ↑ R. v. Stillman [1997] 1 S.C.R. 607, 1997 SCC 32

Conscriptive Evidence

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Evidence that is conscriptive is a factor against the admission of evidence obtained by a Charter violation.

Conscriptive evidence affects the trial fairness factor.

Conscriptive evidence is evidence that arises from any of the following:[1]

  1. statements
  2. use of the accused's body
  3. taking of bodily sample
  4. evidence derived from the above (derivative evidence)

Evidence that is conscriptive and not otherwise discoverable will tend to be excluded.

A voluntary statement cannot be conscriptive.[2]

Conscriptiveness must be proven by the Accused on a balance of probabilities.

Discoverable evidence is evidence that 1) can be proven by other non-conscriptive means or 2) would inevitably be discovered.[3]

Discoverability must be proven by the Crown on a balance of probabilities.

  1. ↑ Watt, Manual of Criminal Evidence at 41.03
    Stillman - lists the first three factors
  2. ↑ Watt at 41.03
  3. ↑ Stillman

Relevant Charter Rights

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