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Charter - s.24(2) - Exclusion of Criminal Evidence (5). R. v. James
In R. v. James (Ont CA, 2025) the Ontario Court of Appeal partially allowed a criminal appeal, here on Charter s.24(2) 'exclusion of evidence' grounds.
The court walks through the trial judge's treatment of three Grant factors and the 'final balancing' [at paras 34-62], and then conducts it's own Grant analysis:(f) The s. 24(2) analysis conducted afresh
[63] Where reversible errors in a trial judge’s s. 24(2) analysis are found on appeal, it falls to this court to conduct the s. 24(2) analysis afresh: R. v. Davidson, 2017 ONCA 257, 352 C.C.C. (3d) 420, at para. 46.
[64] The focus must be on whether the administration of justice would be served by the admission or exclusion of the evidence. In my view, the evidence ought to have been excluded.
[65] At the first stage of the Grant analysis, effect must be given to the trial judge’s strong findings of police misconduct and dishonesty. The police conduct in this case was egregious, in terms of the dealings of individual officers with the appellant at the time of his arrest and detention, and their efforts to recast what happened in their evidence at the voir dire, which can only be understood as an attempt to minimize their misconduct. Moreover, even without a finding of systemic misconduct, there was a pattern of disregard for Charter rights. The first Grant factor pulls very strongly in favour of exclusion of the drugs.
[66] The second Grant factor also pulls toward exclusion of the drugs seized outside the sally port from the evidence at trial, albeit not as strongly as the first factor. The s. 10(b) breach resulted in the appellant providing incriminating information: his admission that he had drugs on him, leading to an intrusive search. This was a continuation of the Charter-infringing conduct that occurred when the appellant’s car was searched without reasonable grounds. In effect, the arresting officers and P.C. Freeman demonstrated to the appellant that they were intent on securing evidence of his drug dealing without regard for his Charter rights. While the effect of the s. 10(b) breach was mitigated by the fact that the drugs would have been found irrespective of the breach, this factor alone would not justify admission of the drugs in the circumstances of this case. As Cromwell J. noted in Côté, at paras. 69-74, the fact that evidence is legally discoverable can cut both ways: while it can attenuate the effect on the detainee’s interests under the second Grant factor, it can also heighten the seriousness of the police misconduct in proceeding illegally when a legal avenue was available: see also R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 112, leave to appeal refused, [2017] S.C.C.A. No. 225; see also R. v. S.S., 2023 ONCA 130, 422 C.C.C. (3d) 277, at para. 89.
[67] As for the third Grant factor, the two offences in question – possession for the purpose of trafficking crack cocaine and fentanyl – are extremely serious. The police seized significant amounts of the most dangerous controlled substances in an area plagued by drug trafficking. The evidence was essential to the Crown’s case. I acknowledge that there is a very real societal interest in an adjudication of the charges on the merits, and that the third Grant factor strongly favours the admission of the evidence. This is conceded by the appellant.
[68] In balancing the Grant factors, the cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: R. v. McColman, 2023 SCC 8, 167 O.R. (3d) 559, at para. 74. In R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, the Supreme Court noted that, in considering the Grant factors evidence could be excluded even if the first two inquiries do not both pull strongly toward exclusion, as in the case of a serious Charter breach coupled with a weaker impact on Charter-protected rights. “It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion”: at para. 141; see also Whittaker, at para. 34.
[69] Here, the first Grant factor very strongly weighs in favour of exclusion of the evidence, while the second Grant factor also favours exclusion, but not as forcefully. Together, they make a compelling case for exclusion. The third line of inquiry pulls strongly in the other direction. There is without question an important interest in the prosecution of those who are engaged in the supply of the most dangerous drugs to vulnerable members of our society. In conducting the final balancing, however, the seriousness of the offence cannot be the controlling consideration in the decision whether to exclude evidence: Harrison, at para. 40. I refer to the observations of Doherty J.A. in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, that “if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility”. As he further noted, at para. 83: “[t]he court can only adequately disassociate the justice system from the police misconduct and reinforce the community’s commitment to individual rights protected by the Charter by excluding the evidence. … This unpalatable result is a direct product of the manner in which the police chose to conduct themselves.”
[70] Similarly, the exclusion of the evidence of substantial amounts of dangerous drugs is the “unpalatable”, but necessary, result in the present case. The significant factors here, that weigh strongly against the admission of the evidence, are that the police were not acting in good faith; that they demonstrated a pattern of “cavalier” and “reckless” disregard for the appellant’s Charter rights; and that they gave dishonest and misleading in-court testimony. The admission of the evidence would in effect vindicate the serious Charter breaches by the police in this case, and in this way harm the long-term repute of the administration of justice. Accordingly, the administration of justice would be better served by excluding the evidence than by admitting it.
[71] Finally, I note that the Crown initially relied on the fact that the trial judge provided a remedy other than exclusion of evidence for the breach of the appellant’s s. 10(b) Charter rights, asserting that this was a proper exercise of the trial judge’s discretion pursuant to R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 49. The sentencing reasons were not included in the record on the appeal, and the indictment simply notes a “one year additional credit”, and does not specify the nature of that credit. The Crown, in oral argument, retreated from any reliance on this argument. Accordingly, it is not necessary or appropriate to address it in this case.
[72] The effect of the exclusion of the evidence seized from the appellant outside the sally port area is to set aside the appellant’s convictions on counts 2 and 3, possession of cocaine and fentanyl for the purpose of trafficking, and to acquit him of these charges. . R. v. Truong
In R. v. Truong (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here where the trial judge erred in that "given the relationship between the s. 10(b) breach and the s. 8 breach ... all the breaches should have been considered to be part of the same transaction" for the Charter 24(2) assessment:[40] The trial judge properly found that, although there was no causal relationship, there was a sufficient temporal and contextual link between the discovery of the handgun and the s. 10(b) breach so as to meet the “obtained in a manner” requirement under s. 24(2) and justify consideration of whether the evidence should be excluded: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72.
[41] However, given the relationship between the s. 10(b) breach and the s. 8 breach arising from the first warrantless entry, which then gave rise to the s. 8 breach arising from the second warrantless entry, all the breaches should have been considered to be part of the same transaction. Together, they met the “obtained in a manner” requirement under s. 24(2): Pino, at para. 73. They should have been considered cumulatively in the analysis of the Grant factors.
[42] This type of error can make a difference. A failure to consider related breaches together can distort the view taken of the seriousness of the Charter-offending conduct: Mhlongo, at paras. 60-62. Similarly, a failure to consider related breaches together may fail to capture the overall impact of the offending conduct on the accused’s Charter-protected interests, since they are all “part of the constellation of factors” relevant to this question: Just, at paras. 22, 38 and 54; R. v. Zacharias, 2023 SCC 30, 487 D.L.R. (4th) 571, at para. 49.
[43] Rather than considering the breaches together for each factor of the Grant analysis, the trial judge conducted a siloed review of the s. 10(b) breach and expressed the conclusion that she would dismiss the application to exclude based on it. Although she went on to consider the s. 8 breaches and conducted an alternative s. 24(2) analysis in relation to them, she did not consider the s. 10(b) breach as part of that analysis. Two separate analyses will not necessarily equate to one analysis that considers the cumulative effect of the related breaches – the whole may be more than the sum of the parts.
[44] The trial judge’s failure to consider the breaches as related, and to conduct her analysis of the Grant factors on that basis, was an error in principle. It therefore falls to this court to conduct a fresh analysis. . R. v. Samuels
In R. v. Samuels (Ont CA, 2024) the Ontario Court of Appeal allowed a defendant's criminal appeal, here where the parties agree there was a Charter s.10(b) breach but the trial judge allowed inculpatory evidence to be admitted under Charter s.24(2).
Here the court extensively walks through the s.24(2) Grant factors:[3] The appellant appeals against his convictions only, arguing that the trial judge erred by not excluding the gun and seized currency as a s. 24(2) remedy for the breach of his s. 10(b) Charter rights.
[4] I would allow the appeal. The breach in this case was a serious departure from well-established Charter standards. The police had grounds to obtain a search warrant for the appellant’s apartment the day before they arrested him, but chose to wait until after they made the arrest to apply for the warrant, and to suspend the appellant’s right to counsel in the interim. The entirely predictable result of this operational plan was that the appellant’s right to counsel was delayed much longer than was reasonably necessary.
[5] In my view, the trial judge erred in his s. 24(2) analysis by treating the impact of the s. 10(b) Charter breach on the appellant’s protected interests as “neutral at best” because the breach did not lead to the police obtaining any evidence. This ignored the serious impact it had on the appellant’s security of the person. He was held in custody without access to counsel for ten hours, nine of which I find were unjustified.
[6] In view of the trial judge’s error, it falls to us to conduct our own assessment of the applicable s. 24(2) factors. Although the seized evidence was reliable and essential to the prosecution’s case, for the following reasons, I would find this to be “one of those cases in which the long-term repute of the administration of justice requires the sacrifice of the short-term benefit of an adjudication on the merits of this case”: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 49.
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(3) The Grant factors
(1) The seriousness of the Charter-infringing state conduct
[50] The first Grant line of inquiry requires courts to consider whether admitting evidence would “[send] 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”: Grant, at para. 72. This involves assessing “the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter”: Grant, at para. 73. The Grant majority added at para. 75:“Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. [51] The trial judge found that TBPS, unlike the police in Rover, did not have a policy of routinely delaying detainees’ access to counsel: see Rover, at paras. 15, 29. I agree that this finding places the breach of the appellant’s Charter rights at a lower point on the spectrum of seriousness, as compared to the breach in Rover.
[52] Even so, the breach of the appellant’s s. 10(b) Charter rights was a significant departure from established Charter standards. “A serious breach of a long-established and well-understood constitutional right can lead to exclusion of evidence, even where the breach is not systemic in nature, or part of a pattern of police misconduct”: Hobeika, at para. 82. As McLachlin C.J.C. noted in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 25:[W]hile evidence of a systemic problem can properly aggravate the seriousness of the breach and weigh in favour of exclusion, the absence of such a problem is hardly a mitigating factor. See also R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 67.
[53] Moreover, even if the Thunder Bay police do not commonly commit similar s. 10(b) violations, the breach of the appellant’s rights cannot be characterized as merely “an isolated act of a single misguided police officer”: R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 129, per Binnie J.; see also McGuffie, at paras. 68-69. Rather, it was the predictable outcome of a deliberately chosen operational plan, approved by senior officers, that treated the appellant’s s. 10(b) Charter rights as unimportant.
[54] It is also an important consideration that the police investigation of the appellant took place almost two years after this court’s decision in Rover. The police practice in Rover of routinely delaying detainees right to counsel was not the only problem this court identified. Doherty J.A. also sharply criticized the police failure to consider alternative approaches that would have avoided any delay in putting the accused in touch with counsel, or at least reduced the length of this delay. As he explained at para. 39:Apart entirely from never turning their mind to the actual need to delay the appellant's access to counsel, the officers showed no interest in mitigating the delay. For example, there is no evidence that the police considered obtaining a search warrant before arresting the appellant. I see nothing in the circumstances that would have prevented the police from obtaining the warrant first. This would have avoided, or at least substantially minimized, any delay in affording the appellant his constitutional right to speak with counsel. Even if the police wanted the appellant out of the residence before executing the warrant, they could have obtained the warrant, watched the residence, arrested the appellant when he left and proceeded to execute the warrant. Had the police followed that procedure, they could have allowed the appellant immediate access to counsel. Instead, by arresting the appellant before obtaining the warrant, the police ensured that he would be held without access to his lawyer for hours. [Emphasis added.] [55] Most of these criticisms apply with equal force here. As I have already discussed, there was no legal or practical impediment to the TBPS obtaining a search warrant for the apartment before the appellant was arrested, either by applying for it the day before and requesting an extended execution period, or by applying for it on the morning before the appellant’s arrest. To whatever extent Det. Veal and his superiors may have considered these options, they seem to have rejected them for no good reason. As in Rover, they instead adopted a course that “ensured that [the appellant] would be held without access to his lawyer for hours”: Rover, at para. 39.
[56] In my view, the seriousness of the breach of the appellant’s s. 10(b) Charter rights falls somewhere on the spectrum between the breaches in Rover and Hobeika, but closer to the Rover end.
[57] In Hobeika, where the accused was denied access to counsel for more than four hours, there was no evidence that this resulted from a deliberate police decision rather than an unfortunate oversight. Although Doherty J.A. found a “troubling police indifference” to the accused’s s. 10(b) rights, he nevertheless found the breach less serious than that in Rover, charactering it as “a situation-specific, isolated failure, albeit a serious one, by the officers who had custody of Hobeika during the relevant time period”: Hobeika, at para. 88.
[58] In contrast, the breach of the appellant’s s. 10(b) Charter right was the readily foreseeable consequence of the operational plan that the TBPS had deliberately adopted in this case. While the gravity of the breach would have been even worse if the TBPS, like the police in Rover, had been following a protocol that they used in every drug investigation, “[t]he absence of evidence of systemic non-compliance with Charter requirements by the police is not a mitigating factor”: McGuffie, at para. 67.
[59] In summary, I concluded that the first set of Grant factors weigh in favour of exclusion, albeit somewhat less heavily than in Rover.
(2) The impact of the breach on the appellant’s Charter-protected interests
[60] The second Grant line of inquiry focusses on the seriousness of the impact of the breach on the Charter-protected interests of the accused. As the Grant majority explained, at para. 76:It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [61] The trial judge addressed the second set of Grant factors by focussing exclusively on the lack of any causal link between the breach of the appellant’s s. 10(b) rights and the search of his vehicle where the gun was found. I agree that this lack of causal connection was a relevant consideration, and leads to the conclusion that the s. 10(b) breach had no impact on the appellant’s s. 8-protected privacy interest: see Grant, at para. 122; Rover, at para. 43. However, the trial judge erred in principle by ignoring how the breach affected the appellant’s other important Charter-protected interests.
[62] As Doherty J.A. observed in Rover, at para. 45:The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. See also R v. Dussault, 2022 SCC 16, at para. 56.
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[68] In my view, the record in this case does not support the inference that the appellant suffered no significant psychological distress from having been held incommunicado since his arrest. To the contrary, the booking video reveals that the appellant badly wanted to speak to his lawyer right away, and was upset and distressed when he learned that he would be denied the right to do so for some unknown time, which ultimately stretched well into the night.
[69] In these circumstances it was an error for the trial judge to dismiss the impact of the breach on the appellant’s protected interests as “neutral at best.” Even though the breach had no discernible impact on his right to privacy and his right against self-incrimination, it substantially interfered with his “security of the person interest protected by s. 10(b)”: Rover, at para. 47. To adopt what Doherty J.A. said in Rover, at para. 47:I would hold that the s. 10(b) breach had a significant negative impact on the appellant's Charter-protected rights. While that impact was certainly not as serious as it would have been had there been a causal connection between the breach and the obtaining of the evidence, it was nonetheless significant. [70] This set of Grant factors accordingly favours exclusion of the evidence.
(3) Society’s interest in an adjudication on the merits
[71] As usual in cases involving the admission or exclusion of real evidence, the third Grant inquiry, which looks to society’s interest in an adjudication on the merits, favours admitting the seized handgun, and to a lesser extent the seized cash. Both items of evidence were essential to the Crown’s case on the charges under appeal, so excluding them will lead to the appellant being acquitted of serious charges, despite his factual guilt.
[72] However, the trial judge somewhat oversimplified the analysis by suggesting that the seriousness of the charges uniformly favoured admission. As the Grant majority explained at para. 84, “while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways”, since:While the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [73] Although I agree with the trial judge’s conclusion that on balance the third Grant inquiry weighs in favour of admitting the seized evidence, the societal interest in preventing the justice system from being tainted by police misconduct also cannot be ignored. As Doherty J.A. put it in McGuffie, at para. 73:[S]ociety's concerns that police misconduct not appear to be condoned by the courts, and that individual rights be taken seriously, come to the forefront when the consequences to those whose rights have been infringed are particularly serious. (4) Balancing the three sets of Grant factors
[74] As Doherty J.A. explained in McGuffie, at paras. 62-63:The first two [Grant] inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted]. [75] In this case, the first Grant inquiry favours exclusion of the evidence, albeit somewhat less strongly than it did on the facts of Rover, which raised broader systemic concerns that on the trial judge’s findings of fact do not arise here.
[76] However, in my view, the second set of Grant factors weigh in favour of exclusion somewhat more strongly than they did in Rover, where the accused was unconstitutionally denied access to counsel for “almost six hours”. The breach of the appellant’s s. 10(b) Charter rights went on considerably longer, which increases the weight of the second set of Grant factors here.
[77] On balance, I would find that this is a case where, like in Rover, “the long-term repute of the administration of justice requires the sacrifice of the short-term benefit of an adjudication on the merits of this case”: Rover, at para. 49. The first and second sets of Grant factors both favour exclusion, and while the first set does so somewhat less strongly than it did in Rover, this is offset to some extent by the increased weight of the second set. In my view, this is not a case where the overall balance is tipped back in favour of admission by the strength of the societal interest in an adjudication on the merits. I would add that even if I agreed with my colleague MacPherson J.A.’s conclusion that the duration of the s. 10(b) breach in this case was shorter than I have found, this would not change my conclusion that the balance of Grant factors favours exclusion. . R. v. Gauthier
In R. v. Gauthier (Ont CA, 2024) the Ontario Court of Appeal dismisses an appeal from a first degree murder conviction.
Here the court considers Charter s.24(2) ['exclusion of evidence'] after a Charter breach:(f) Section 24(2)
[54] However, even assuming that there was a reasonable expectation of privacy in the voicemail and that the police acted unlawfully by not obtaining a warrant before seizing it, the appellant can only succeed on the appeal if he can satisfy this court that the evidence should be excluded under s. 24(2) of the Charter.
[55] While I agree that the trial judge’s s. 24(2) decision is owed no deference, because he found no breach of s. 8 in the first place, I do agree with his conclusion that the admission of the voicemail would not bring the administration of justice into disrepute.
[56] Under the well known Grant test, the appellant must persuade us, that on balance: (1) the seriousness of the breaches; (2) the impact of the breaches; and (3) society’s interest in the adjudication of the case on its merits, requires exclusion because the admission of the evidence would bring the administration of justice into disrepute: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.
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