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Charter - s.24(2) - Exclusion of Criminal Evidence (6). R. v. Breton [issue estoppel across charge trial to forfeiture hearing]
In R. v. Breton (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here brought against a Crown-successful "application for an order under s. 490(9) of the Criminal Code" ['Disposal of things seized'].
Here the court considered whether issue estoppel attaches to Charter s.24(2) evidence exclusion issues, across the criminal charge trial to the property forfeiture hearing:[60] In my view, a s. 24(2) analysis looks very different in the context of a forfeiture proceeding as compared to a criminal trial, and issue estoppel therefore did not preclude the trial judge from reaching a different conclusion in his s. 24(2) analysis in the forfeiture proceeding. This is because the first requirement from Mahalingan – that “the same” question has been decided – is not met.
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iii. Section 24(2) in the context of a s. 490(9) forfeiture application
[71] In my view, issue estoppel did not preclude the trial judge from conducting a fresh s. 24(2) application for purposes of the forfeiture proceeding.
[72] To explain why this is so, I start with a reminder that all s. 24(2) Charter inquiries must stay true to the content of that provision, specifically that where a court has concluded that evidence was obtained in a manner infringing or denying a Charter right, 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” (emphasis added).
[73] In accordance with the wording of s. 24(2) emphasized above, we must keep in mind all of the circumstances when determining whether issue estoppel applies, as well as the proceedings in which the evidence is sought to be adduced. As for the latter, and to be sure, this was not a criminal trial. It was a forfeiture proceeding, and the circumstances engaged at a forfeiture proceeding are fundamentally different from those a criminal trial.
[74] The purpose of a criminal trial is to determine whether an accused is guilty of an alleged crime. This is often referred to as the truth-seeking function of the criminal trial: Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 54; R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 95. As noted in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 605, we must accept that the “purpose of the criminal trial is to get at the truth in order to convict the guilty and acquit the innocent”. The stakes are high at a criminal trial, where the accused stands at risk of losing their liberty through imprisonment, having a criminal record imposed on them and becoming subject to the stigma that goes along with those consequences.
[75] In contrast, a forfeiture proceeding does not carry the same risk. By saying that, I do not intend to minimize the serious implications that can flow from such a proceeding. Yet, at its very core, a s. 490(9) forfeiture proceeding is directed at returning seized items to their lawful owners once those items are no longer required for an investigation or court proceeding: Backhouse, at para. 112; R. v. Floward Enterprises Ltd. (H. Williams and Co.), 2017 ONCA 448, 413 D.L.R. (4th) 645, at para. 31; Hollaman, at paras. 97-98.
[76] The contrast between these types of proceedings, criminal trials and forfeiture proceedings, was pointed out by the Québec Court of Appeal in Vellone, at paras. 41 and 55, and I agree entirely. While Vellone is about a forfeiture proceeding under s. 16 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, much of the analysis applies equally to a forfeiture proceeding under s. 490(9) of the Criminal Code because both provisions provide a process for the disposition of property rather than the determination of an accused’s criminal liability.
[77] In the context of the forfeiture proceeding, as explained by the trial judge, the s. 24(2) analysis looked very different as compared to the criminal trial. While the first two prongs of Grant, namely the seriousness of the Charter-infringing state conduct and its impact on the Charter-protected interests of the appellant, remained static, the same could not be said for the third criterion, that being society’s interest in the adjudication of the case on its merits, or for the balancing of the three criteria together: Grant, at para. 71.
[78] This is so for three reasons.
[79] First, the stakes of a s. 490(9) application are different. In a criminal trial, liberty is at stake. In a s. 490(9) application, property is at stake. Where liberty is at stake, the importance of the court dissociating itself from state misconduct and the impact of such misconduct on the accused can be heightened. As the Supreme Court observed in Grant, “while the public has a heightened interest in seeing a determination on the merits when 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”: at para. 84. In a s. 490(9) hearing, the need for the court to dissociate itself from state misconduct must be evaluated in light of the absence of any penal stakes for an accused person. Given the appellant’s liberty is not at risk on the forfeiture application, the third Grant factor is assessed differently.
[80] Second, there is a procedural problem that arises when an applicant seeks exclusion under s. 24(2) of the very property (along with information about that property) that they are asking be returned to them. This is the relief the appellant sought below. If this relief had been granted and the seized property itself had been excluded from the forfeiture hearing, it would have been impossible for the trial judge to carry out the purpose of s. 490(9) and decide where the seized property should go. This would frustrate the entire purpose of s. 490 and must be part of the relevant circumstances considered under s. 24(2). By contrast, where evidence is excluded in a criminal trial, the truth-seeking function may be hampered and the Crown's case may be weakened, but the trial can still proceed.
[81] Finally, seized property cannot stay in limbo forever. At the end of the day, it must either be returned to the person from whom it was seized, given to another lawful owner, or forfeited to the Crown. As the trial judge noted, there is a “practical reality” that evidence has been seized and is held by the state. Unlike in a criminal trial, where the question is whether the evidence will be admitted or not, the question on a forfeiture application is what should become of the evidence. That question should not be left unresolved to infinity. Indeed, s. 490 contemplates that it will not sit forever. Doing nothing is not an option.
iv. Conclusion
[82] These differences all affect the operation of the third Grant factor and the final balancing. They are part of the circumstances that must be considered in deciding whether admission of evidence will bring the administration of justice into disrepute. Therefore, the issue before the trial judge in the second s. 24(2) application was different from the issue before him at the first one. For this reason, the first criterion from Mahalingan – that the same question has previously been decided – is not met. Issue estoppel therefore did not preclude the trial judge from conducting a fresh s. 24(2) analysis and coming to a different conclusion. . R. v. Dalia
In R. v. Dalia (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, this brought against "convictions for possession of fentanyl and cocaine for the purpose of trafficking and for possession of the proceeds of crime".
Here the court considers Charter s.24(2) 'Grant' exclusion of criminal evidence issues, here where the court found a s.10(b) ['right to counsel'] breach:[39] In weighing the first factor in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, to determine whether the evidence should be admitted under s. 24(2), the application judge found that the breach was not serious: it was inadvertent rather than deliberate, it did not reflect either any bad faith or pattern of conduct by the police, and, once it was discovered, it was rectified immediately. On the second factor, he found the impact of the breach on the appellant’s Charter-protected interests to be “moderate” insofar as it was “significant but much less so than many that come before the court where the evidence has been admitted”.[8] On the third factor, the application judge found that society’s interest in the adjudication of the case on its merits favoured admitting the evidence found during the search: the appellant was charged with extremely serious offences and the evidence was both reliable and essential to the Crown’s case.
[40] Weighing the three Grant factors, the application judge determined that excluding the evidence “would punish the police for a simple miscommunication” and that this “would damage, rather than vindicate, the long-term repute of the criminal justice system.”[9] He accordingly concluded that the evidence should be admitted.
[41] Relying on R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 and R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, the appellant contends that the application judge erred in his assessment of the seriousness of the breach of the appellant’s s. 10(b) rights and its impact on the appellant’s interests.
[42] I see nothing in the application judge’s analysis that is inconsistent with the principles set out in Rover or Jarrett.
[43] At issue in Rover was a routine practice by police in Whitby of preventing arrested persons from accessing counsel if the police intended to obtain a warrant to search for drugs in a place connected to the arrested person. As a result of this practice, Mr. Rover was not put in touch with counsel for six hours after his arrest. As Doherty J.A. emphasized, the “right to counsel is a lifeline for detained persons” and detaining a person for hours without explanation for a refusal to call counsel and with no indication of when they might speak to a lawyer is a serious breach of their s. 10(b) rights: Rover, at paras. 45-46. In light of this, “concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel”: Rover, at para. 27. Doherty J.A. found that the application judge in Rover understated the seriousness of a police practice that systematically deprived detainees of their s. 10(b) rights and its impact on such persons as well as on the justice system as a whole. Mr. Rover’s appeal was allowed, his convictions were quashed and acquittals were entered.
[44] The application judge was alive to the principles in Rover, which were set out in a passage in R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at para. 38, excerpted in his reasons. Citing R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at paras. 74-75, another decision that relied on Rover, the application judge instructed himself that “to fall within the exception of the requirement that an arrested person be allowed to speak to counsel without delay, the police must turn their minds to the specific circumstances of the case and must have reasonable grounds to justify delay such as police, or public safety or the risk of the destruction of evidence.”[10] In applying this rule, the application judge found that the s. 10(b) violation occurred in circumstances that are factually distinct from those in Rover. He accepted Sgt. Rizzo’s evidence that, when the appellant was arrested, the police were searching for a gun, and they had no idea who was in the house. He concluded at para. 57 of his judgment that:[Sgt. Rizzo] had indeed turned his mind to these specific facts in this particular case and concluded officer and public safety, as well as evidence protection, justified a delay in counsel being called until the warrant had been executed and the house secured. There is nothing in the record before me to indicate such delays were systemic or the policy of the Hamilton Police. Indeed, Sgt. Rizzo testified that this was the first time he had given an instruction to delay calling counsel. [45] It was on this basis that the application judge concluded that there was no s. 10(b) violation during the time that the police reasonably required to execute the search warrant and secure the house.
[46] In Jarrett, arresting officers made no effort to contact a detainee’s lawyer after leaving him a single voicemail message. As a result, following his arrest, Mr. Jarett had no contact with counsel for 30 hours, 20 of which he spent handcuffed to a hospital bed. Zarnett J.A. concluded that, although there was no evidence that the failure to follow up on the initial effort to contact Mr. Jarrett’s lawyer reflected a systemic practice, “the sheer length of the delay, and the fact that over that lengthy period, nothing was done to inform the appellant that any effort to contact counsel was made, or to follow up on the contact, should have led the application judge to conclude that the breach was serious and favoured exclusion of the evidence”: Jarrett, at para. 50. He also found that the application judge understated the impact of the breach on Mr. Jarrett’s Charter-protected interests while his right to counsel was suspended, even though no attempt was made to question him.
[47] The situation in Jarrett is again factually distinguishable. The unjustified delay in implementing the appellant’s s. 10(b) rights lasted 41 minutes, not 30 hours. The appellant was not handcuffed to a bed. The application judge explained why he accepted Sgt. Rizzo’s evidence that the delay was inadvertent and not the result of either a misguided policy or police negligence. . R. v. Kurzyna
In R. v. Kurzyna (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, correcting the trial judge Charter s.24(2) 'Grant' analysis:[9] Nor would we disturb the trial judge’s determination that the evidence should be admitted pursuant to s. 24(2), despite having found that the appellant’s s. 8 rights had been breached. We note that the trial judge mistakenly stated that the second Grant factor “pulls towards admission of the evidence”. The first two branches of the Grant test never favour admission; at most, they can weakly favour exclusion: R. v. Zacharias, 2023 SCC 30, 431 C.C.C. (3d) 421, at para. 75. ... . 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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