S. 24(2)

Question 1

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R.

Answer 1

When evidence is obtained in breach of the Charter, the s. 24(2) inquiry then examines the impact of admitting this evidence on public confidence in the justice system over the long term, based on three lines of inquiry (GRANT):

1. The seriousness of the Charter-infringing state conduct;
2. The impact of the breach on the accused’s Charter-protected interests; and
3. Society’s interest in the adjudication of the case on the merits.

The final step of the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. (R. v. Tim)

• Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. (70)
• It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.(75)
• Also, good faith helps as the Court won’t have to distance themselves as much if it’s GF (75)

Question 2

R. v. Tim, 2022 SCC 12

Answer 2

A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2).

1. The seriousness of the Charter-infringing state conduct (weak exclusion);
    Spectrum/scale of culpability:
   • Willful/Reckless disregard;
   • Systemic pattern of Charter infringing conduct; or
   • Major departure from Charter standards.

o VS

• Inadvertent;
• Technical;
• Minor; or
• Understandable mistakes.

2.	The impact of the breach on the accused’s Charter-protected interests (moderate exclusion); 
	Spectrum/scale of culpability: 
•	Fleeting, 
•	Technical, 
•	Transient, or 
•	trivial, 

o VS

• Profoundly intrusive; or
• That seriously compromise the interests underlying the rights infringed.

3. Society’s interest in the adjudication of the case on the merits. (Admission)
    “Whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion” (Grant at 79)
    Reliable evidence critical to the Crown’s case will generally pull toward inclusion. (Grant at 80-81)

Question 3

R. v. Keshavarz, 2022 ONCA 312

Answer 3

1. NOT PARTICULARLY SERIOUS (115) - Admission
    No incrimination and no indication liberty would have been obtained any earlier had the breach not occurred.
    No causal connection between the breach and the discovery of the Glocks, which the trial judge found had been lawfully seized (discoverable w/o the breach and discovered w/o the breach).
2. Impact on other Charter interests -> Neutral
    Not compounded by interference by any other Charter-protected interests.
3. Society’s Interest -> Admission
    The public has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high the public also has “a heightened interest in seeing a determination on the merits where the offence charged is serious”: (R. v. Harrison, 2009 SCC 34)
    Trafficking in firearms is very serious – community safety, broad daylight.

Question 4

R. v. Babos / R. v. Nixon / O’Connor

Answer 4

Stay of Proceedings (for abuse of process, lack of disclosure)

(1) there must be prejudice to the accused’s right to a fair trial

or

to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome,

(2) there must be no alternative remedy capable of redressing the prejudice, and
(3) where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court must balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits.