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Charter - s.24(2) - Exclusion of Criminal Evidence (2). R. v. Nguyen
In R. v. Nguyen (Ont CA, 2023) the Court of Appeal considers Charter s.24(2), and some related Grant issues:Issue 1: Failure to exclude evidence under s. 24(2) of the Charter
[18] The appellant argued that the application judge erred in her s. 24(2) analysis by not considering two significant factors: (1) the overall course of police conduct; and (2) the lack of good faith on the part of D.C. Worth.
The overall course of police conduct
[19] The appellant argued that the application judge erred in concluding that having provided a s. 24(2) remedy for the earlier breaches, she was therefore precluded from considering this same conduct again when determining whether to exclude the evidence later discovered in the apartment search.
[20] Although I agree this would have been an error, I do not believe that the application judge reasoned in this manner. In considering whether the apartment evidence was “obtained in a manner” that would bring the administration of justice into disrepute, she did not understand herself to be precluded from considering the Charter breaches proximate to the appellant’s arrest. The analysis from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 does not apply mechanistically, and it was open to her to conclude, as she did, that some of the police misconduct was not sufficiently connected to the search of the apartment and discovery of the evidence such that exclusion of the evidence was needed to distance the court from the Charter breaches. That the application judge was reinforced in this conclusion by the fact that she had already provided a remedy for the breaches related to the unlawful arrest, is not an error. She faithfully applied the Grant criteria, provided relief proportionate to the breaches, and committed no reviewable error.
Lack of good faith
[21] With respect to the second argument, the appellant argues that the application judge erred in characterizing D.C. Worth’s decision to carry out the apartment freeze as a good faith error of law.
[22] Central to the application judge’s reasoning was that D.C. Worth’s conduct suggested he was informed by the state of the law prior to Paterson, believing that the state of affairs confronting him constituted exigent circumstances that rendered it impracticable to wait until a warrant had been obtained. D.C. Worth inferred that the appellant might have more drugs stashed at his apartment and that his confederates, learning of his arrest, might attend the apartment and retrieve the drugs. Supporting these inferences, D.C. Worth testified that: 1) there were several people who observed the arrest, including a group of men across the street; 2) he believed that the appellant had called something out to the group (although he could not remember what was said); 3) he believed there may have been more drugs stored in the apartment and he was concerned with preserving this evidence; and 4) the appellant was a suspected gang member, which raised the possibility that he had confederates who could have entered the apartment and retrieve any drugs that might be there.
[23] I would agree that in freezing the apartment D.C. Worth acted honestly and without bad faith, but an absence of bad faith does not necessarily equate to a finding of good faith: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 147. He acted without legal justification. Although the application judge suggested D.C. Worth would have been on a solid footing pre-Paterson, it bears noting that the Supreme Court in Paterson rejected a trial judge’s finding of good faith in a similar misapprehension of the law and found that it did not weigh in favour of the inclusion of the evidence.
[24] However, as in R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at para. 100, per Brown J.A. (dissenting), rev’d 2019 SCC 32, [2019] 2 S.C.R. 576 for the reasons of Brown J.A., the trial judge’s key finding was not that D.C. Worth acted in good faith, but that his conduct fell at the less serious end of the spectrum. This finding is supported by the evidence, particularly that: 1) he made some effort to determine whether anyone was in the apartment before entering; 2) he was in the apartment for less than a minute; and 3) he did not conduct a search beyond determining whether anyone was present. Accordingly, I would not interfere with the application judge’s conclusion on s. 24(2). . R. v. Davis
In R. v. Davis (Ont CA, 2023) the Court of Appeal considered the 'obtained in a manner' ("that infringed or denied any rights or freedoms guaranteed by this Charter") requirement of the Charter s.24(2) exclusion of evidence provision:[28] The Supreme Court of Canada has long taken a “purposive and generous approach” to the “obtained in a manner requirement”: R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at para. 78; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21. In 1988, the Court rejected the need for a causal connection to meet this requirement: R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 1002-1004. It has repeatedly affirmed that the required connection between the breach and the evidence sought to be excluded “may be ‘temporal, contextual, causal or a combination of all three’” so long as the connection is not “remote” or “tenuous”: Wittwer, at para. 21, citing R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at para. 40; R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45.
[29] The reason for this generous approach is simple and compelling. The “disrepute requirement” is the “core inquiry” under s. 24(2): Strachan, at p. 1006. It is when analysing the “disrepute requirement” that close analysis is undertaken of all of the circumstances to determine whether courts must exclude evidence to demonstrate that Charter violations will not be condoned, or to show that Charter rights “count”: Grant, at para. 109; R. v. Pino, 2016 ONCA 389, 337 C.C.C. (3d) 402, at para. 56. In contrast, the “obtained in a manner requirement” is a “threshold requirement”: R. v. Beaver, 2022 SCC 54, at para. 95. Treating the “obtained in a manner requirement” as an exacting threshold would be contrary to the remedial scheme of s. 24(2) because it would foreclose trial judges from engaging in the close “core inquiry” that is needed to preserve the repute of the administration of justice, and potentially prevent trial courts from having an available remedy for Charter violations that should not be condoned. The idea is that so long as the connection between the breach and the evidence is not remote or tenuous, the evidence is sufficiently “tainted” to warrant evaluation of whether its admission would bring the administration of justice into disrepute: see Wittwer, at para. 21. The absence of a meaningful link between a breach and the evidence can be fully considered under the Grant test, as it can reflect not only on the seriousness of the breach, but also, and arguably even more clearly, on the impact of the breach on the Charter-protected interests of the accused. When this examination is undertaken as part of the core inquiry, rather than as a threshold issue, it brings the benefit of having all of the circumstances considered. . R. v. Davis
In R. v. Davis (Ont CA, 2023) the Court of Appeal considers the 'fresh start' doctrine, which can excuse (by 'repair') the effect of a Charter breach on Charter s.24(2) evidence exclusion:[20] The Crown’s arguments in favour of its submission that the appeal judge erred in failing to analyse whether the breath samples were “obtained in a manner” that violated Mr. Davis’s rights are based on the “fresh start” doctrine. I will describe the “fresh start” doctrine in some detail below. Suffice it to say for introductory purposes that even where an initial Charter breach has occurred, the “fresh start” doctrine can lead to a finding that evidence discovered after that initial breach has not been “obtained in a manner” that violated the Charter because of subsequent Charter compliance that occurred before the evidence was discovered. The Crown argues that here, the “fresh start” occurred after the initial s. 10(b) informational breach, when the police later provided Mr. Davis with the required s. 10(b) information and gave him access to a lawyer before he furnished the evidential breath samples. The Crown argues that the trial judge and the appeal judge were obliged to address this issue, and that the appeal judge erred in not doing so
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[33] Second, Jamal J.’s description of the “fresh start” doctrine is explicitly grounded in the existing case law. After reviewing that case law, he recognized that “[i]n some cases” evidence will not be obtained in a manner that breached the Charter because the police have made a “fresh start” by later complying with the Charter, in circumstances that render the nexus between the initial breach and the evidence sought to be excluded too remote to satisfy the “obtained in a manner requirement”: Beaver, at para. 97. Relying on existing principles, he made it clear that the key issue is whether the evidence remains tainted after the “fresh start”: Beaver, at paras. 98, 99. And he explained that “[w]hether evidence was ‘obtained in a manner’ is not determined by whether the state eventually complied with its Charter obligation, but instead is based on whether [after the eventual Charter compliance] there remains a sufficient causal, temporal, or contextual connection between the Charter breach and the impugned evidence”: Beaver, at para. 99. He also cautioned that care must be taken because in some cases “evidence will remain tainted by a Charter breach despite subsequent Charter compliance.”
[34] I accept the Crown submission that the “fresh start” doctrine I have just described is capable of being applied to informational breaches of s. 10(b). In R. v. Simon, 2008 ONCA 578, 269 O.A.C. 259, at paras. 71-74[1], this court applied the “fresh start” doctrine to an informational breach of s. 10(b), finding that a saliva sample secured from the appellant was too remote from the informational breach to satisfy the “obtained in a manner requirement”. It is helpful to describe the Simon decision in some detail now and I will return to this decision below.
[35] Mr. Simon was initially arrested for the theft of a van. He was told of the reason for his arrest, and properly advised of his right to counsel and permitted to consult with counsel. During that consultation, Mr. Simon had the opportunity to discuss with counsel his rights as a detained person, and to receive advice relating to the charge being investigated – the theft. When the police interview commenced, Mr. Simon was questioned about the theft, but ultimately the focus of the investigation shifted from the stolen van to sexual assaults that the police suspected Mr. Simon of committing. This occurred without the police advising Mr. Simon that he had the right to consult counsel again, relating to this new ground of investigation. The failure to readvise Mr. Simon of his right to counsel when the investigation moved to the alleged sexual assaults was an informational breach of s. 10(b) because individuals are entitled to be readvised of their rights to counsel when the investigation against them takes on a new and more serious focus: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 51. Later, when he was asked by the police to provide the saliva sample in connection with the sexual assault investigation, Mr. Simon was told of his right to withhold his consent and to talk to a lawyer, but he gave an express, informed, and voluntary waiver of his s. 10(b) rights and he chose to consent to providing the saliva sample, which proved to be incriminating. Doherty J.A. held that since the purpose of s. 10(b) was fulfilled despite the initial informational breach, and since Mr. Simon provided his informed consent to the saliva sample, the saliva sample was not obtained in a manner that violated the Charter.
[36] As important a case as Simon is, the application of the “fresh start” doctrine is not to be based on the precedent of its application to similar categories of breaches in prior decisions. As Jamal J. emphasized in Beaver, at para. 97, the application of the fresh start doctrine “must be sensitive to the facts of each case.” In my view, a case-sensitive evaluation in the circumstances of this case does not support the Crown’s position that a “fresh start” put the “obtained in a manner” issue into such sharp relief that the appeal judge was obliged to raise the issue of his own motion.
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[38] Second, as I will explain, unlike the cases relied upon by the Crown, in the circumstances of this case, the eventual compliance with s. 10(b) obligations did not dispel the damage that the initial breach of Mr. Davis’s s. 10(b) informational rights caused to his Charter-protected interest, making this a poor case for the application of the “fresh start” doctrine. In Beaver, Jamal J. recognized that a relevant consideration in applying the “fresh start” doctrine is whether the subsequent compliance by the police dispelled the effect of the initial breach: Beaver, at para. 103. By parallel consideration, the “fresh start” doctrine has more obvious application in cases where the impact of an earlier Charter violation has been effectively dispelled by subsequent Charter compliance that occurs before the discovery of the subject evidence.
[39] In Manchulenko, for example, the accused ultimately fully enjoyed the implementational right to counsel he was initially deprived of, when he spoke to counsel before providing the subject breath test. The subsequent compliance was with the identical right that had initially been breached, and it occurred before the evidence was obtained. In the end, the initial breach had no effect, making Manchulenko a clear case for the “fresh start” doctrine.
[40] Similarly, in Simon, as Doherty J.A. found, after Mr. Simon was readvised of his right to speak to a lawyer before providing a saliva test, the underlying purposes of s. 10(b) were fulfilled. Importantly, there was no breach of Mr. Simon’s right to immediate information upon detention about his rights to counsel because he was told upon his initial arrest of his right to counsel. As a result, Mr. Simon enjoyed the benefits of the immediacy requirement, which I will describe below. He then spoke to a lawyer, thereby providing him with the opportunity to obtain legal advice on everything but the sexual assault investigation, of which, at the time, he was unaware. Then, before the saliva sample was taken, he was told about that sexual assault investigation and given a chance to get further advice, which he knowingly waived. This subsequent Charter compliance was able to dispel the effect of the Charter breach of failing to readvise Mr. Simon of his right to counsel in the context of the evolving sexual assault investigation. Manifestly, once this occurred, the links between the breach and the obtainment of the saliva sample became remote and tenuous.
[41] The contrast is that, in this case, the subsequent compliance with s. 10(b) did not repair the damaging effects of the breach of Mr. Davis’s s. 10(b) immediacy rights. As the Crown concedes, during the period of delay, Mr. Davis was without the benefit of information about his right to counsel, a consequence that the belated advice he received did not change. Nor did Mr. Davis’s ultimate enjoyment of the s. 10(b) implementational rights remedy this breach of his informational rights. After all, informational rights are not provided solely as a means of enjoying implementational rights. A detained person requires the immediate assurance that “they are not entirely at the mercy of the police while detained” and are entitled to a “lifeline to the outside world” through which they can learn whether they are lawfully detained, and of their legal rights and obligations relating both to their liberty and the investigation: Pino, at para. 105; R. v. Rover, 2018 ONCA 745, 366 C.C.C. (3d) 103, at para. 45; R. v. Noel, 2019 ONCA 860, at para. 24-26; R. v. O’Brien, 2023 ONCA 197, at paras. 48, 49. Compliance with the immediacy requirement provides these constitutionally assured benefits; something Mr. Davis was deprived of even after the belated compliance with s. 10(b). Put simply, because the subsequent compliance with s. 10(b) in this case did not fully dispel the effects of the informational breach, the justification for the application of the “fresh start” doctrine is materially weakened.
[42] Third, in this case the temporal and contextual links between the breach and taking the breath samples were strong, reducing the prospect that the “fresh start” doctrine could sever those links: the informational breach occurred as part of an arrest undertaken for the very purpose of securing the evidential breath samples from Mr. Davis; the informational breach and the provision of the evidential breath samples occurred during the same event and as part of the same investigation; and the breach and the evidential breath samples were proximate in time.
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[44] In my view, the “fresh start” doctrine should be applied to breaches of the immediacy requirement of the informational component of s. 10(b) only in clear cases. If belated s. 10(b) compliance is readily accepted as making an earlier immediacy breach too remote to warrant the exclusion of evidence, then s. 10(b)’s immediacy requirement will become a right without a remedy, and no Charter right should be without remedy: Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at para. 50. The “fresh start” doctrine was not intended, and should not serve, as a mechanism for systematically undermining the effective enforcement of informational Charter rights. . R. v. O'Brien
In R. v. O'Brien (Ont CA, 2023) the Court of Appeal briefly states the Charter s.24(2) exclusion of evidence test, excludes evidence and allows an appeal based on the seriousness of the several Charter violation:Section 24(2)
[16] The trial judge set out the governing test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The Grant test determines whether the admission of unconstitutionally obtained evidence would bring the administration of justice into disrepute, thereby requiring exclusion, based on a balancing of three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the Charter violation on the Charter-protected interests of the accused, and (3) society’s interest in an adjudication of the case on its merits. The trial judge did not explain her application of the three Grant factors to the search of Mr. O’Brien’s iPhone, after accepting the trial Crown’s concession that the contents of that search required exclusion, pursuant to s. 24(2). She did explain her application of the three Grant factors to the balance of the evidence and found that its admission would not bring the administration of justice into disrepute. It is convenient to describe her material reasoning in this regard while analyzing the grounds of appeal.
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[24] In Grant, at paras. 72-75, McLachlin C.J. and Charron J. for the majority explained that this first line of inquiry under the Grant test – the evaluation of the seriousness or gravity of the offending state conduct – focuses upon the level of fault of the breaching officers in the circumstances. In R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at para. 82, Jamal J. explained that there is a spectrum or scale of police misconduct. The more serious the offending conduct, the more pressing the need for the court to dissociate itself from the fruits of that conduct.
[25] It is also settled law that the seriousness of the breach is aggravated where there is a systemic problem or pattern of Charter-infringing conduct: R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286 (Ont. C.A.), at para. 85, citing Grant, at para. 75; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 25. This follows from the prospective role that the exclusionary rule is to play, in which “the judge’s analysis must focus on systemic concerns”: Grant, at para. 201.
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[31] I agree with Mr. O’Brien that where there are related breaches, the cumulative impact on the Charter-protected rights of the accused should be considered when assessing this Grant factor [SS: impact of the breach]: R. v. Just, 2020 ONCA 362, 388 C.C.C. (3d) 273, at para. 38; R. v. Culotta, 2018 ONCA 665, (2018), 142 O.R. (3d) 241, at para. 62, aff’d 2018 SCC 57, [2018] 3 S.C.R. 597. That is not to say that differential outcomes cannot be arrived at, with some unconstitutionally obtained evidence being admitted and other such evidence being excluded: Just, at para. 52, citing the pre-Grant decision in R. v. Lauda, (1999), 1999 CanLII 970 (ON CA), 45 O.R. (3d) 51 (C.A.), at paras. 100-103, as illustrative. Differential outcomes may be required because a number of the factors for consideration in determining whether the admission of evidence will bring the administration of justice into disrepute are linked to the specific evidence sought to be excluded, such as the discoverability doctrine (R. v. Cote, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 69-70), the absence of a causal link between the breach and the discovery of the evidence (R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at p. 1006; R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at paras. 112-16; R. v. Desilva, 2022 ONCA 879, at paras. 87, 97), or even the kinds of evidence sought to be excluded (Grant, at paras. 87-128). The instant point is that cumulative negative impacts on the Charter-protected interests of the accused can enhance the need to exclude evidence to preserve the repute of the administration of justice but should not be permitted to obscure the impact of material considerations that are linked to the specific evidence sought to be excluded.
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Society’s Interest in an Adjudication on the Merits
[53] This Grant factor requires courts to consider the impact that exclusion would have on the truth-seeking function of the trial process. The exclusion of reliable evidence can compromise the ability of the Crown to prove the case on its merits, thereby damaging the repute of the administration of justice, even after appropriate consideration is given to the value in excluding evidence in order to protect the integrity of the administration of justice: Grant, at paras. 79-82. The more important the evidence is to the Crown’s case, the greater the risk of disrepute from its exclusion: Grant, at para. 83. . R. v. McColman
In R. v. McColman (SCC, 2023) the Supreme Court of Canada considered whether to exclude evidence under Charter s.24(2), here in an Ontario HTA impaired driving case:B. Should the Evidence Obtained Have Been Excluded Under Section 24(2) of the Charter?
[53] Section 24(2) requires that evidence obtained in a manner that infringes the Charter rights of an accused be excluded from the trial 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 s. 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person, and the burden to persuade a court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion: Grant, at para. 68.
[54] Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns: Grant [SS: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353], at para. 70. In Grant, this Court explained that the s. 24(2) analysis engages three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter‑protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. Courts are tasked with balancing the assessments under each of these lines of inquiry, but as recognized in Grant, “[t]he balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision”: para. 140.
[55] Trial courts must evaluate each of the three lines of inquiry thoroughly. A cursory review of the Grant test prevents appropriate appellate review and transforms s. 24(2) from a contextual inquiry into a bright-line rule.
[56] In the current case, the trial judge did not conduct a Grant analysis, since he found that s. 48(1) of the HTA authorized the random sobriety stop and there was no s. 9 violation. Accordingly, this Court must conduct the Grant analysis afresh.
(1) The Seriousness of the Charter-Infringing Conduct
[57] The first line of inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law. As this Court stated in Grant, at para. 72, this line of inquiry “requires a court 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, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct”. Or as this Court phrased it in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22: “Did [the police conduct] involve misconduct from which the court should be concerned to dissociate itself?”
[58] In evaluating the gravity of the state conduct at issue, a court must “situate that conduct on a scale of culpability”: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43. As Justice Doherty observed in R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, “the graver the state’s misconduct the stronger the need to preserve the long‑term repute of the administration of justice by disassociating the court’s processes from that misconduct”: para. 23. To properly situate state conduct on the “scale of culpability”, courts must also ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct: Grant, at para. 75. Were the police compelled to act quickly in order to prevent the disappearance of evidence? Did the police act in good faith? Could the police have obtained the evidence without a Charter violation? Only by adopting a holistic analysis can a court properly situate state conduct on the scale of culpability.
[59] It should be noted at the outset that the first and second lines of inquiry are distinct. The first line of inquiry evaluates the state conduct itself, while the second line of inquiry goes further and assesses the impact of the state conduct on the accused’s Charter-protected interests. This Court has noted that “[w]hile the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion”: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 141. As noted in R. v. Lafrance, 2022 SCC 32, at para. 90, “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry when assessing whether evidence should be excluded” (emphasis in original). In certain situations, only one of the first two lines of inquiry will pull towards exclusion of the evidence. State conduct that is not particularly serious may nonetheless heavily impact the accused’s Charter-protected interests. Conversely, state conduct that is egregious may minimally impact the accused’s Charter-protected interests. Courts must be careful not to collapse the first two lines of inquiry into one, unstructured analysis.
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(2) The Impact of the Breach on the Charter-Protected Interests of Mr. McColman
[66] The second line of inquiry is aimed at the concern that admitting evidence obtained in violation of the Charter may send a message to the public that Charter rights are of little actual avail to the citizen. Courts must evaluate the extent to which the breach “actually undermined the interests protected by the right infringed”: Grant, at para. 76. Like the first line of inquiry, the second line envisions a sliding scale of conduct, with “fleeting and technical” breaches at one end of the scale and “profoundly intrusive” breaches at the other: para. 76.
[67] For example, in R. v. Tim, 2022 SCC 12, the impact on the accused’s s. 9 interests was found to fall somewhere in the middle of the spectrum. The impact of the accused’s arbitrary arrest was mitigated to some degree because although he was arrested on the basis of a mistake of law about the legal status of a drug, he was lawfully detained for a traffic collision investigation: para. 92. By contrast, in Harrison, this Court found that the impact was more significant because the accused was stopped and his vehicle was subjected to a search without lawful justification: para. 31; see also R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 56.
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(3) Society’s Interest in the Adjudication of the Case on Its Merits
[69] The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry requires courts to consider both the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence: Grant, at para. 79. In each case, “it is the long-term repute of the administration of justice that must be assessed”: Harrison, at para. 36.
[70] Under this third line of inquiry, courts should consider factors such as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence, although this Court has recognized that the final factor can cut both ways: Grant, at paras. 81 and 83-84. While the public has a heightened interest in a determination on the merits where the offence is serious, it also has a vital interest in maintaining a justice system that is above reproach: para. 84.
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(4) Balancing the Grant Factors
[74] When balancing the Grant factors, the cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: Lafrance, at para. 90; R. v. Beaver, 2022 SCC 54, at para. 134. Here, the first line of inquiry slightly favours exclusion of the evidence and the second line of inquiry does so moderately. However, the third line of inquiry pulls strongly in favour of inclusion and, in our view, outweighs the cumulative weight of the first two lines of inquiry because of the crucial and reliable nature of the evidence as well as the important public policy concerns about the scourge of impaired driving. On the whole, considering all of the circumstances, the evidence should not be excluded under s. 24(2).
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