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Charter - s.24(2) - Exclusion of Criminal Evidence (6). R. v. Pahal
In R. v. Pahal (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, this from convictions for "multiple firearm-related offences: (1) intentional discharge of a firearm while being reckless as to the life or safety of another person (s. 244.2(1)(b) of the Criminal Code); (2) possession of a weapon for a dangerous purpose (s. 88(1)); (3) assault with a weapon (s. 267(a)); (4) possession of an unauthorized firearm without a licence (s. 92(2)); (5) possession of a loaded restricted firearm (s. 95(1)(b)); and (6) possession of a firearm without a licence (s. 91(1))".
Here the court considers Charter s.24(2) exclusion of evidence doctrine:[8] Whether the statements obtained by the police should be excluded under s. 24(2) of the Charter involves an examination of two components: R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 94. First, the appellant must establish that the evidence was “obtained in a manner” that infringed the appellant’s Charter rights. The appellant has demonstrated a connection between the identified Charter breaches and the evidence, necessitating consideration of the second component: whether the statements should be excluded under s. 24(2) by applying the three-part test established in R. v. Grant, 2009 SCC 32, 2 S.C.R. 353.
[9] Applying the test, I conclude that the admission of this evidence would not bring the administration of justice into disrepute. Balancing the seriousness of the state conduct and its impact on the appellant with society’s interest in an adjudication on the merits, the statements should not be excluded. The statements provide overwhelming evidence of the appellant’s guilt. They were properly admitted. Accordingly, I would dismiss the appeal.
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(i) Test Under s. 24(2)
[63] Section 24(2) of the Charter provides: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. [64] The test for exclusion under s. 24(2) is well established. The onus is on the appellant to satisfy the court that the statements should be excluded.
[65] To determine whether the evidence should be excluded under s. 24(2), the court must first address a threshold question: whether the statements were “obtained in a manner” that infringed or denied a Charter right. If this threshold is met, the court proceeds to the “evaluative component,” which involves three lines of inquiry: McSweeney, at para. 58; Grant, at para. 59.
(ii) Statements Were Obtained in a Manner that Infringed the Appellant’s Charter Rights
[66] The appellant’s statements were obtained in a manner that infringed his Charter rights. There is no serious dispute that the impugned statements were part of the same transaction or course of conduct: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 19-21. Applying a purposive and generous approach, there is a strong connection between the appellant’s statements and the breaches of his rights. There is no suggestion that anything the police did after arresting the appellant severed the link between the first statement at the home and the subsequent statement at the police station: Beaver, at paras. 94-103. Therefore, both statements were “obtained in a manner” that infringed the appellant’s Charter rights.
(iii) Evaluative Component
[67] This component involves three lines of inquiry: (1) the seriousness of the Charter-infringing 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. This is followed by a final balancing exercise to determine whether admitting the evidence would bring the administration of justice into disrepute: Grant, at para. 71.
(a) Seriousness of the Charter-Infringing State Conduct
[68] The police’s misconduct must be placed on a spectrum, ranging from wilful or reckless disregard for Charter rights to inadvertent or minor violations. The former will negatively affect public confidence in the rule of law: Grant, at para. 74.
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[75] To avoid crossing the line and effecting a detention while executing a search warrant, police officers should act “solely to ensure the integrity of the search”; this includes any concerns about officer safety and the loss or destruction of evidence. They should interfere with occupants’ liberty only to the extent necessary for this purpose and withhold from questioning that is focused on an occupant’s involvement with the crime: McSweeney, at paras 38, 44. If or when they exceed these parameters, they must provide any occupants of the premises with their s. 10(b) rights.
(b) The Impact of the Breach on the Charter-Protected Interests of the Accused
[76] This inquiry evaluates how the breaches undermined the interests protected by the infringed rights: Grant at para. 76.
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[81] In Grant, the court held that the impact of a s. 10(b) breach may be attenuated when an individual utters an incriminating statement “spontaneously following a Charter breach” or in the exceptional case “where it can confidently be said that the statement in question would have been made notwithstanding the Charter breach”: Grant, at para. 96, citing R. v. Harper, 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343. In light of the trial judge’s findings above, I find this to be such a case. The record here supports that the impact on the appellant’s s. 10(b) rights is somewhat attenuated.
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(c) Society’s Interest in the Adjudication of the Case on its Merits
[83] This inquiry asks whether the truth-seeking function of the trial is better served by admitting or excluding the evidence: Grant, at paras. 79-84.
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