Section 24 (2) - Enforcement

24 (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.

R. v. Mian, 2012 ABCA 302 (CanLII)

[22] The trial judge then turned to the question of whether the evidence should be excluded due to these section 10 breaches. He referred to the decision of the Supreme Court in R v Grant, 2009 SCC 32, [2009] 2 SCR 353, in which the court set out a revised, three-stage test for subsection 24(2) analysis, which involves examining the seriousness of the breach, the impact of the breach on the protective interests of the accused, and society’s interest in the adjudication of the case on its merits.

(i) The seriousness of the breach

[23] The trial judge considered the lack of causal connection between the Charter breaches and the evidence, noting that “it will only be in exceptional circumstances that the denial of the right to counsel will trigger a violation of section 8. Usually a section 10(b) violation does not go to the very lawfulness of the search” (para 95). He held, however, that the breaches were serious and deliberate, and thereby egregious. He concluded that the breaches favoured excluding the evidence.

(ii) The impact on the accused

[24] The trial judge turned to the impact of the breaches on the accused. He found that the impact would have been serious if the Crown had tried to introduce statements made by the respondent when questioned by McGill prior to having been advised of his rights. The Crown, however, was not seeking to introduce any statements of this kind. As there was a lack of causal connection between the breaches and the obtaining of the evidence, the trial judge found that the breaches did not have a significant impact upon the respondent’s privacy interests. The second aspect of the Grant test, therefore, favoured inclusion.

(iii) Adjudication on the merits

[25] Finally, he turned to society’s interest in having the case adjudicated on the merits. Here, once again, he considered the lack of causal connection between the breach and the evidence. He found that this factor, along with the fact that the offence was serious and the evidence obtained was real evidence, favoured admission. Having said this, he found that these factors had to be balanced against the seriousness of the Charter breaches and the conduct of the police witnesses at trial. In this latter regard, he found that the continued reliance by Werth and McGill on alleged safety concerns undermined the truth-seeking function of the trial.

(iv) Final balancing

[26] Finally, the trial judge turned to balancing the three Grant factors. He held that, when all three factors were considered, the balance, in this case, favoured exclusion. He summarized, at para 111 of his reasons:

Considering the three factors directed by Grant, I have concluded that the combined effect of the seriousness of the breaches and their impact on the protective interests of Mian outweigh society’s interest on the adjudication of this case on its merits. The Court cannot be seen to condone wilful and flagrant Charter breaches or attempts to mislead the Court (see R. v. Harrison, 2009 SCC 34 (CanLII), [2009] 2 S.C.R. 494). The admission of the evidence in these proceedings would bring the administration of justice into disrepute by causing the reasonable member of the public to question the integrity of the justice system. The evidence is excluded.