Section 24(2) of the Charter of Rights and Freedoms and Grant Analysis
The Applicant bears the onus for establishing that the exclusion of evidence is appropriate, on a balance of probabilities. To determine whether evidence is tainted by infringement of a Charter right such that it should be excluded under section 24(2) of the Charter, the three factors set out by the Supreme Court in Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353 must be applied, considered and balanced.
The three factors as set out in Grant are as follows:
- seriousness of the Charter-infringing state conduct
- impact of the breach on the Charter-protected interests of the accused, and
- society's interest in the adjudication of the case on its merits
The inquiry is objective. It asks 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.
Section 24(2)’s focus is not only long term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.
At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
At the third stage, a court asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown’s case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.
Establishing the breach of a Charter right is just the first step - it's important to follow through with attention to the Grant analysis so that the efforts spent on proving the breach are worthwhile.
Adel Afzal
Barrister and Solicitor
September 18, 2024