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Section 24(2)

Section 24(2). Michal Fairburn. R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.) Trial fairness Seriousness of the breach Repute on the administration of justice. R. v. Stillman ( 1997), 113 C.C.C. (3d) 321 (S.C.C.).

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Section 24(2)

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  1. Section 24(2) Michal Fairburn

  2. R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.) • Trial fairness • Seriousness of the breach • Repute on the administration of justice

  3. R. v. Stillman(1997), 113 C.C.C. (3d) 321 (S.C.C.) • trial fairness takes on a new meaning, focussing on conscriptive v. non-conscriptive evidence • “... in situations where the evidence would not have been discovered in the absence of the conscription of the accused in violation of the Charter, its admission would render the trial unfair. In those circumstances it is not necessary to consider the seriousness of the violation or the repute of the administration of justice since a finding that the admission of the evidence would render the trial unfair indicates that the administration of justice would necessarily be brought into disrepute if the evidence were not excluded under s.24(2)”. [para. 110]

  4. Was this an automatic exclusionary rule? • Yes – McLachlin J. (as she then was in dissent) • No – LeBel and Fish JJ. in R. v. Orbanski, [2005] 2 S.C.R. 3

  5. Stillman’s automatic ruleis gone … • Acknowledgement that Stillman was “generally read as creating an all-but-automatic exclusionary rule for non-discoverable conscriptive evidence” and that whether intended by Stillman or not, “seems to go against the requirement of s. 24(2) that the court determining admissibility must consider ‘all of the circumstances’”

  6. In Grant, SCC “took a judicial wire brush to the 20 years of jurisprudential gloss that had built up around s. 24(2) and scrubbed down to the bare words of the section” R. v. Blake, 2010 ONCA 1

  7. A return to “all of the circumstances” • It is an objective inquiry asking whether a reasonable person in all of the circumstances and values underlying the Charter would conclude that admission of evidence would bring the “administration of justice into disrepute” • R. v. Grant (2009), 245 C.C.C. (3d) 1 (S.C.C.) • R. v. Harrison (2009), 245 C.C.C. (3d) 86 (S.C.C.)

  8. Goals of the provision … • Long-term repute of the justice system • Not aimed at punishing the police, but on systemic impact, although deterring breaches may be a “happy consequence” of exclusion

  9. The Test: • (1) seriousness of the Charter-infringing state conduct • (2) the impact of the breach on the Charter-protected interests of the accused • (3) societal interest in adjudication of the case on its merits

  10. (1) Seriousness of the Charter-infringing State Conduct • Need to place the conduct on a seriousness continuum • The more serious the conduct, the greater the concern for the long-term repute of the administration of justice • Dissociation from grave misconduct

  11. (1) Seriousness of the Charter-infringing state conduct • Factors for consideration: • Minor violation vs. wilful or reckless disregard for the Charter • Good faith • negligence • Wilful blindness • Deliberate • Extenuating circumstances like need to preserve evidence • Patterns of abuse • Sloppiness - R. v. Dhillon, 2010 ONCA 582 v. missing “the mark by very little”R. v. Hines, 2009 ONCA 703

  12. 2. Impact on Charter Protected Interests • Have to measure impact of breach on the individual • May range from “fleeting and technical to profoundly intrusive” • Homes and computers • R. v. Morelli, [2010] 1 S.C.R. 253: “it is difficult to imagine a more intrusive invasion of privacy than the search of one’s home and personal computer” • Home: R. v. Stevens, [2011] O.J. No. 3164 (C.A.) at para. 61 • Home: R. v. Dhillon, supra • Computer: R. v. Jones, [2011] O.J. No. 4388 (C.A.); R. v. Cole, [2012] 3 S.C.R. 34 • Contrast with car on street: R. v. McKenzie, [2011] O.J. No. 156 (C.A.)

  13. (2) The impact of the breach on the Charter-protected interests of the accused • Statements to authorities and searches that may impact on protected interests of privacy and “more broadly, human dignity” • If high expectation of privacy or demeaning dignity, will be considered more serious

  14. Discoverability • Still retains a useful role when assessing the actual impact of the breach • If would have been obtained anyway, less serious impact of Charter-infringing conduct, unless police deliberately flouted the Charter (turned their minds to getting a warrant and decided not to) • R. v. Cote, [2011] SCJ No. 46

  15. Bodily Substances and Breath • Conscriptive evidence is more easily admissible: R. v. Du, [2010] O.J. No. 4494 (C.A.) (breath); R. v. Ramage, [2010] O.J. No. 2970 (C.A.)

  16. Statements • Presumptively inadmissible, but still proceed to three lines of inquiry • Minor breaches will favour admission (ie technical defect in compliance with s. 10(b) at informational or implementational stage) • R. v. Butorac, [2010] B.C.J. No. 1670 (Sup. Ct.) at paras. 107-8; R. v. Mohamud, [2010] ONSC 5305 (Sup. Ct.); R. v. N.Y., 2012 ONCA 745

  17. (3) Societal interest in adjudication of case on its merits • Strong societal interest in adjudicating cases on their merits … • Ask whether the “truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion” • “truth-seeking” remains relevant

  18. (3) Societal interest in adjudication of case on its merits • Reliability is key concept • “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”

  19. (3) Societal interest in adjudication of case on its merits • While a valid consideration, seriousness of the offence can cut both ways • Justice system must be “above reproach, particularly where the penal stakes for the accused are high”

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